Pay at Time and a Half ? It Depends on Exempt Status
Q I am a software engineer for a small development company. When I was offered this job, I was concerned about the possibility of long hours, so I agreed to take the job only if I was paid an hourly wage.
I submit a weekly time sheet documenting my hours, and I am paid my hourly rate times the number of hours I work. Am I entitled to time-and-a-half pay for the hours I’m required to work past 40 hours in a week? Unlike other big companies I’ve worked for, this one has no employee manual or documented company policy on labor practices, vacation, holidays, sick time, etc.
--M.C., Laguna Niguel
*
A A California employee is entitled to overtime compensation at 1 1/2 times his or her regular rate of pay for all hours worked over 40 in a workweek unless he or she is exempt from overtime pay requirements of both state and federal laws.
As a software engineer employed by a development company, you are exempt from California’s overtime requirement if you are paid at least $1,150 a month and are engaged in work that is primarily intellectual, managerial or creative, and requires the exercise of discretion and independent judgment. The federal exemption is quite different. A software engineer paid on an hourly basis is exempt from the federal overtime compensation requirement if he or she:
* is highly skilled in computer systems analysis, programming or related work in software functions.
* receives an hourly rate of pay that is at least 6 1/2 times the federal minimum wage (currently $5.15 per hour).
* focuses on specific duties detailed in the federal regulation, such as the design, development, documentation, analysis, testing or modification of computer systems or programs.
Under California law, you are entitled to workers’ compensation benefits under an insurance policy paid for by your employer. If your employer has 50 or more employees, you also have a legal right to take leaves of absence for various reasons, as specified in state and federal family leave laws. However, unless there is an agreement between you and your employer, you have no legal right to vacation pay, holiday pay or sick pay.
If your employer has a policy providing any or all of these benefits to hourly employees, you are entitled to participate in accordance with company policy. If there is no such policy and you are not represented by a labor organization, you are entitled to these benefits only if you successfully negotiate for them yourself.
--Deborah C. Saxe
Management attorney
Heller Ehrman White & McAuliffe
Ex-Employers and Reference Checks
Q. After three years, I left a mid-size corporation in San Diego on agreeable terms and relocated to Los Angeles. Within a month, three prospective employers expressed a desire to hire me pending a background check and a reference check of my former employers.
My background check contained no negative information. Then I learned that, when asked for a reference, my former employers would offer only my dates of employment, salary history and job titles.
Each of the prospective employers told me I “had the job” if I could put them into direct contact with people who worked with me to respond to questions about my work habits, character and integrity. Otherwise, the companies said they could not hire me.
Frustrated, I called my former boss in San Diego. He told me upon my departure that he would give me a “sterling” reference only to learn that the company has a rule that no current employee is allowed to provide references. Only the human relations department could provide references, and it would provide only the limited information I outlined above.
What can an applicant do to satisfy the reference requirement if former co-workers and employers are prevented from providing it?
--A.V., Los Angeles
*
A. This is a perfect example of how a law designed to protect employees from false bad references can work to their detriment. However, employers are understandably concerned about references because of potential liability.
There is no law requiring an employer to give any information about a former employee to a prospective employer. However, there are a number of things that you can do to satisfy reference requirements of prospective employers:
* Insist that your former employer follow through with any oral or written promises to give you a favorable reference. It would be helpful if the commitment was made in writing, or that you submitted a memo describing the commitment.
* Use your past good performance evaluations as a substitute for a reference. If performance is not an issue in your layoff, ask for a performance evaluation from your supervisor as you are being terminated, and don’t term it a letter of reference.
* Ask a former supervisor or manager who no longer works at your former company to talk to a prospective employer about you.
* Offer to waive any claims you might have against your former company to induce it to cooperate.
* Employers might be more willing to cooperate if you request a “letter of reference” instead of a letter of recommendation.
* Encourage the prospective employer to offer to release your former employer from any liability in exchange for more information.
--Don D. Sessions
Employee rights attorney
Mission Viejo
If you have a question about an on-the-job situation, please mail it to Shop Talk, Los Angeles Times, P.O. Box 2008, Costa Mesa, CA 92626; dictate it to (714) 966-7873; or e-mail it to shoptalk@latimes.com. Include your initials and hometown. The Shop Talk column is designed to answer questions of general interest. It should not be construed as legal advice.
