USA: Computer Professionals Update Act

Date November 16, 2011

A bill is currently making its way through the United States Senate that effectively eliminates overtime pay for IT professionals. The important text of the bill is:

Section 13(a)(17) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(17)) is amended to read as follows:

(17) any employee working in a computer or information technology occupation (including, but not limited to, work related to computers, information systems, components, networks, software, hardware, databases, security, internet, intranet, or websites) as an analyst, programmer, engineer, designer, developer, administrator, or other similarly skilled worker, whose primary duty is--

(A) the application of systems, network or database analysis techniques and procedures, including consulting with users, to determine or modify hardware, software, network, database, or system functional specifications;

(B) the design, development, documentation, analysis, creation, testing, securing, configuration, integration, debugging, modification of computer or information technology, or enabling continuity of systems and applications;

(C) directing the work of individuals performing duties described in subparagraph (A) or (B), including training such individuals or leading teams performing such duties; or

(D) a combination of duties described in subparagraphs (A), (B), and (C), the performance of which requires the same level of skill;

who is compensated at an hourly rate of not less than $27.63 an hour or who is paid on a salary basis at a salary level as set forth by the Department of Labor in part 541 of title 29, Code of Federal Regulations. An employee described in this paragraph shall be considered an employee in a professional capacity pursuant to paragraph (1).’

I think that I may have originally underestimated the importance of this bill to us SysAdmins in the United States...see, I was under the impression that we were almost all salaried and exempt - in other words, that overtime wasn't an option anyway. I've been informed by a couple of friends of mine that this isn't the case at all, and that there are a lot of hourly SysAdmins who get overtime.

Because I always want to be informed about the state of the industry, I built a really simple survey using Google Forms that's embedded below.

The results have been posted.

  • Zoredache

    Please consider posting the results when you consider the survey complete.

  • John McGrath

    Why has this Bill even been proposed? I can't see the reason, except for monetary reasons by Big Business. The thought of losing overtime pay, whether salary or not, strikes as a blow to the admins who work overtime to keep business networks up and running.

    I don't know any industry that does not pay overtime to its employees, unless it was agreed upon at hire time. Taking this away from admins would negatively impact business, when a admin gets a call-out, and will not come in because they won't get paid.

  • http://www.standalone-sysadmin.com Matt Simmons

    John:

    You do make an excellent point. Implementing this would not do anyone any favors, but it's ill advised and mean spirited to even submit the bill. I'm 100% with you in wondering what the authors were thinking.

  • Scott

    There have been a number of high-profile lawsuits in California, where Computer Professionals (DBA's, sysadmins, web designers, etc.) had been hired as salaried/exempt and were found to not qualify as such under the law. Led to a LOT of lawsuits for back pay and back overtime pay. That's probably what's prompting this law.

  • Bill Zimmerly

    I must be overlooking it somehow, but where is the part that "eliminates overtime pay?"

  • http://www.standalone-sysadmin.com Matt Simmons

    Bill:

    The key sentence is at the end: An employee described in this paragraph shall be considered an employee in a professional capacity pursuant to paragraph (1).

    That references paragraph 1 of the amended law, which can be found here: http://www.law.cornell.edu/uscode/html/uscode29/usc_sec_29_00000213----000-.html

    Paragraph 1 basically lays out exempt employees (people who are professionals on salary, and therefore unable to have overtime).

  • Bill Zimmerly

    Thanks Matt! :)

  • Twirrim

    Whilst I'm not paid overtime, I generally get time off to equal extent, should I choose to claim it. Given a lot of my extra hours are odd bits here and there I very rarely bother unless I'm conscious that I'm getting worn out.

  • garry baker

    i would like to know which lobbyist for which big IT company wrote this for the Senate to vote on it, and what the cut is for the Senators...to screw the hard working IT guy because it just happens to be the only career field that is not at the same level of unemployment levels as the rest of the jobs in U.S.A...absurd....

  • http://sysadmin1138.net/ sysadmin1138

    In a previous life I was a union steward so am fairly well versed in the FLSA. Or was, 10 years ago. Um. Finding out they're amending it is news I'll have to follow up on.

    It's good, since last I checked the FLSA's salary and hourly thresholds were still at their 1950's levels (things like "anyone earning more than $19K year is Professional", all the nuance was in case-law). Employers like FLSA Exempt since that means they don't have to furnish extra money for time worked, though many do just that either directly (at an effective hourly rate) or indirectly (via comp-time). OT is still possible to be earned by Exempt positions, it's just not a right you can go to the courts to demand.

    If this gets passed as-written, my first employer is going to have to revise the entire IT job-class as a result.

  • Lee Dwayne Sudduth

    The biggest key part is the 'hourly salary' of $27.63/hour. This pay level is about $57,000 per year and some of the non-Exempt IT people I know make around 45-50K ( between $21-25 per hour). If I read this law correctly, they would still be compensated for OT, or they would get a major bump in pay to avoid the OT pay by the employer.

    There are many positions paid hourly for the government (State and Federal) that are over this amount---looks like this may actually be the driving foruce behind all of this---out-sourced Government IT Staff. They're paying consulting firm X about $90-150/hour for that warm body--and usually the OT pay comes out of that---not many consulting firms get reimbursed by governments for OT pay. Sooo..they lose money when their warm body works overtime.

  • Jason Hall

    Not sure why congress would want to regulate overtime in our industry. This decision should be up to each employer/employee and made at the time of hiring.

    You can track this bill and send letters to your representatives through opencongress.org.

    http://www.opencongress.org/bill/112-s1747/blogs

  • http://www.twitter.com/#!/drgncabe Brandon B

    I've been salary without overtime in the pharma side of IT and commonly work 60/70hr weeks making 30-40% less than the industry avg. It starts w startups where I don't mind making less and put a lot of effort but when the companies get sold to corporate entities I don't get bumped and its difficult to get more money until I move to another job. Sucks but I've made due. It's getting harder but not impossiable to move around.

  • Anthony

    There was a similar change made to the law in Ontario - the basic point of it was to prevent people from claiming "overtime" when they worked "off-hours."

    I only say similar in that IT people all freaked out thinking they were being denied overtime. The law up here was better worded though - it basically said that if you work less than 44 hours a week, you can't claim overtime just because you were working overnight or weekends. It basically said that overtime was based on how much you work rather than when.

    I wouldn't be surprised if this bill was intended to serve a similar purpose... but just done poorly.

  • http://www.TheNubbyAdmin.com Wesley David

    It's kind of hard to respond to this survey since I am hourly as a indie contractor and I do charge for "overtime" work (that is, work that goes over the pre-arranged amount of time that I spend on a project as well as time that is spent in off-hours brackets). However, I think my prices are prohibitive so I haven't had to charge for overtime work or off-hours work. =)

    Since delving into the contracting world, I realize that there are a lot more folks out there in IT that get paid hourly than I first realized. It's fairly common, really. This bill would appear to allow a lot of people to get soaked.

  • http://gwaldo.blogspot.com/ Waldo

    The only times that I've been paid overtime were when I was on contract. I know of a few who are salaried but get overtime, but for the most part 'overtime' is replaced with "comp time". In theory...

    On the other hand, most (good) SysAd's personal time isn't very well respected by their employers. Most are *expected* to be available during the regular work week, but also take care of additional things during off-hours.

  • Andrew

    I'm guessing the reason that regulation is being put forth is that there have been several successful lawsuits forcing companies to pay settlements to salaried IT professionals (esp. sysadmins) for working overtime work.

    I don't understand the legal reasons behind this, but you can find some of the court documents here:
    http://www.collectmyovertime.com/California-Class-Action-Settlements.php

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  • http://kim.scarborough.chicago.il.us/ Kim Scarborough

    This only eliminates the federal requirement, though. I imagine most states have their own overtime laws which will be unaffected.

  • K

    I went through something similar with a previous employer. I was salary, but made such a low salary as a systems engineer, that i came in under the minimum hourly wage. I ended yp getting a lot of OT backpay, but they essentially screwed me going forward and didn't obey the law. I chose not to fight it anymore - at will employee and all. I'm told they originally passed this because EA was abusing the developers. It's a fairly good law, and while i now make a more fair wage, there are surely more computer professionals who need to be protected.

  • Hachya

    This is something that looks like it is to put even further of a gap between workers and the people they work FOR (not to sound cliche, but the 1%). Why does it need to be LAW, why can't companies simply do it at their own discretion? If they can't handle keeping people in line when it comes to overtime, maybe its piss-poor management. Of course, no surprises there...

  • John McGrath

    @Hachya: Why don't companies hire enough staff and/or schedule to cover possible overtime issues?

    Mainly because it is not good for the bottom line. I.T. is a money pit... There is no profit to be made in a IT department, even if all the rest of the profit centers depend on I.T. Management does not want to hire more staff because it costs money in salaries, benefits, etc.

    I am sure that there are some financial analysts that have run the numbers, and found that it is more cost efficient to run with the overhead costs of overtime pay than to hire more staff.

    This Bill would eliminate the overtime costs, and would reduce the incentive for management to hire more staff.

  • Squarepusher

    Sounds like a good time to organize.

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  • Jordan

    When I was hired for my first sysadmin job I was salaried, then they found out that I didn't qualify because Oregon has stricter regulations than other states. Something about being a non-supervisory position. I didn't have any direct reports so I coldn't be considered salary. 2nd gig was the same way, 3rd gig that I'm working now still has no direct reports but is salary. Weird. I don't know anymore.

  • Brian Hoenig

    I.T. support, just got more expensive...

  • BrewYet

    Your thinking too narrowly about Sysadmins. That paragraph could describe anyone who has internet access at work.

    any employee working in a computer occupation including, but not limited to, work related to computers to internet, intranet, or websites

  • Angry Voter

    At most large companies, when the CEO goes on vacation, things run smoother.

    If the IT staff went on vacation, work would quickly grind to a halt.

    So, who should be getting the big pay and stock options?

  • Bobby Bracket

    Where is the bill limiting wall street CEO pay?

  • dustin

    I'm salaried, and work between 45 and 65 hours a week, 5-7 days a week, and I don't get comp time or overtime. Working a extra day is guaranteed in my schedule at least every three weeks, and there is nothing set aside to compensate me for that.

  • Dave

    Companies could also include benefits paid as part of an employee's hourly rate.

  • milton rhodes

    Speaking as an IT professional if there is one thing worse than this it is the pathetic barring of internet explorer users from your crappy site.

  • Austin

    So does that mean for us IT employees making below the industry average , $20 an hour, does this mean in order for our company to get out of an extra $2-3 or so they will raise us to roughly $27.65 and put us on salary? If so I look forward to this, I wouldn't mind a pay increase.

  • Dr. Kenneth Noisewater

    "Speaking as an IT professional if there is one thing worse than this it is the pathetic barring of internet explorer users from your crappy site."

    If you consider yourself an IT pro and still use IE, I think you have bigger problems.

    That said, I've never had an IT position that would be affected by this change, but I still think it's rather bad at least from an optics point of view.

  • lpbbear

    Simple solution. Tell em to shove their overtime where the sun don't shine and run the damn systems themselves, I'm leaving at end of shift. 40 hours is 40 hours end of story.

  • Ruggy

    This bill meddles in the wrong direction. I am convinced that IT folks include some of the most abused and overworked skilled employees in the western world. It's been years since I personally knew an IT employee who received overtime, but we are all expected to work plenty of it. The limiting factor is often the point at which we start to make mistakes.

    For me that breaking point seemed to be about 300 hours per month onsite in an extremely high pressure environment. That is NOT including commute time, lunch time or time worked while at home. Again, I was salaried, with no overtime pay or comp time. I did receive something lasting from that job however: a very serious stress disorder which has abated about 70% in 8 years, but still gives me real problems daily including fatigue and has cast a cloud of limitations over my entire life. Still, I consider myself lucky that I never suffered a heart attack from the sheer stress of that job.

    And no, I do not expect nor have I received any compensation from anyone for what has become in effect a partial disability, and I have also paid 100% of my medical bills out of my pocket. Yes I had benefits while employed but in practice, it works like this. There was no time to see any doctors while working on a big project, so when the project is finished and your employment ends, and you think you'll finally have time to get caught up on your health care issues, surprise! You're now on COBRA with minimal coverage and the premiums go sky high. You basically end up paying for everything out of pocket anyway so to afford that, you truly have to drop the so-called insurance.

    I love computers and have been writing software since the 1970's but I would seriously not recommend that anyone who isn't already insane go into this field.

    As if things weren't bad enough, now Congress is sticking their fingers into it!
    There will certainly be people affected by this law, otherwise they wouldn't be writing it. $27.63 an hour may sound like decent money to some, and it may be, but this will be a federal law and costs of living vary considerably. Just try supporting a middle class family on a gross of $60K in some exorbitant place like the Bay area, a high tech hub where this law will definitely apply. Even if you could somehow make ends meet today, this wage cutoff number will be "hard coded" into law. Inflation is such that in five years, you can count on knocking a good 25% off the actual value of that money.

    This law punishes the punished. For the few IT workers who are non-exempt, the prospect of having to pay overtime is about the only thing that keeps employers from completely abusing their employees.