Throughout Texas, Louisiana, Oklahoma, North Dakota, Pennsylvania and other states that are experiencing a boom in oil and gas activity due to fracking, energy related companies are fighting for IT and CAD workers to fill job openings. To help with this task, numerous professional search firms (a/k/a staffing agencies) have aggressively jumped into the arena.
While the offers can be very attractive, workers need to be aware of the demands that will likely be placed on their time and how they will be compensated when required to put in long hours of overtime. This is the case whether going to work directly for a company or being placed by a staffing company. Either way, workers should be skeptical of any pay scheme that does not provide time and a half pay for all hours worked over 40 in a workweek.
The general rule is that most IT workers and CAD designers and draftsmen are legally entitled to overtime pay under both state and federal labor laws – regardless of if they are paid a salary, hourly or a day-rate. So, if you are not paid an overtime premium, start asking questions to find out if the pay scheme is legal. If it’s not legal, you may be entitled to collect double the amount of your unpaid back wages – which could be $10,000s.
The legal issue with overtime pay for IT and CAD jobs most often deals with an employer’s attempt to apply (or misapply) an exemption under the federal pay rules that applies specifically to certain computer employees. This exemption, however, has some very specific requirements that employers and staffing companies like to gloss over in their efforts to hold down labor costs. To legitimately avoid paying overtime, ALL of the tests for the computer employee exemption must be met including:
- The employee must receive a salary of at least $455* ($684 as of 1/1/2020) per week or, if paid hourly, at a rate not less than $27.63 an hour; AND
- The employee must be employed as a computer programmer, computer systems analyst, software engineer or other similarly skilled worker in the computer field performing the duties described below; AND
- The employee’s primary duty must consist of:
- The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
- The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications;
- The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
- A combination of the aforementioned duties, the performance of which requires the same level of skills.
* The Department of Labor under the Obama Administration increased this salary amount to $913 per week effective 12/1/2016; however, this increase was blocked by a court ruling. Instead, the Trump Administration only increased the salary amount to $684 per week effective 1/1/2020. Please see this page for the latest updates.
It is important to note:
- Under Pennsylvania labor laws on overtime, there is no such exemption available to employers.
- Under California’s labor laws on overtime, the requirements for the computer professional are quite different with substantially higher pay requirements.
- The Department of Labor has stated that the computer employee exemption does not cover jobs such as engineers, drafters and others skilled in computer-aided design software.
Given the significant dollar amounts at stake and the strict time limits imposed by the wage laws, procrastination can cost you money. Be sure to contact the experts at The Lore Law Firm for a free and confidential review.