MonkeyPi’s Analysis of Sun Microsystems Tech Writer Class Action Suit

A great discussion has started over on MonkeyPi about the Sun Tech Writer who is suing regarding unfair work exemptions. I replied there but this is a far lengthier topic than the comments deserve.

Exempt Tech Writing: How To Not Get Sued

Personally, I tend to view this as a problem that needs a solution. Were I negotiating this matter I would bring up two specific issues which could have prevented this from occurring, or which could lessen the expectations of management.

First, one thing that Adobe does do right is that they allow telecommuting. This allows a 60 hour work week to be reasonably managed along with a busy life schedule because employees can manage their lives around the time they put in on their home systems.

Second, by having a workflow that allows input remotely without endless face to face meetings (the absolute largest waste of time I observed while working as a tech writer for a nameless military contractor) and proper collaboration, a lot of this time saved reflects working smarter, not harder.

Getting Granular about Exempt Status

I found the following definition of exempt status online:

EXEMPT means the job is NOT subject to payment for overtime hours worked. Employer policy may elect to compensate incumbents in these jobs for their overtime, but there are no restrictions on rates used or quantity of hours paid to incumbents in exempt jobs.

Overtime requirements apply to the JOB not the EMPLOYEE. It is the responsibility content of the job that determines if incumbent employees must be paid for the overtime they work.

There is a Highly Compensated Job exempt status but it only applies to Public-Sector Employees.

Legally, exempt employees are due overtime in California law if it can be proven that they regularly cannot complete their normal assigned tasks without working overtime. Two years ago a roommate of mine ended up winning a similar judgement simply by making a phone call to an attorney and having them contact the HR department where he was working.

What it takes to document your situation is at the very least, logging your hours worked along with the tasks you are assigned. Regardless of exempt/non-exempt status, in California the Overtime law states that you cannot be expected to be working for free, which is what regular overtime without pay is.

Summing up, legally Sun is responsible, at least to one employee. The judge’s court order has the attorneys searching for a second employee, a reasonable request given the frequency with which John Edwards-like trial lawyers tend to overuse the class action.

The lawyers will win one person’s case, that’s a given. A landmark ‘blow for Sun techcomms’ it may not be unless they find another employee to sign on the line.

Yet, as this attorney states on his blog in reference to the IT lawsuits:

In this situation, is it any wonder that, increasingly, some California companies are moving jobs across the border to work in other states where employees don’t have to be paid special overtime rates?

Just like the ridiculously high workers’ compensation rates hurt job creation in California several years ago, the overtime pay requirements are doing the same thing in the IT industry.

Below the fold are the boring legalese text from the California Labor site… You’ve been warned!

The California exemption that Sun can attempt to use is:

professional exemption 

A person employed in a professional capacity means any employee who meets all of the following requirements:

Who is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or

Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. “Learned or artistic profession” means an employee who is primarily engaged in the performance of:

Work requiring knowledge of an advance type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an essential part of or necessarily incident to any of the above work; or

Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work; and

Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.

Who customarily and regularly exercised discretion an independent judgment in the performance of duties set forth above.

Who earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c).

or this one (exempt only from IWC order 14)

Any employee who is engaged in work that is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment, and for which the remuneration is not less than two times the monthly State minimum wage for full time employment

Regarding the requirement for the exemption to apply that the employee “customarily and regularly exercises discretion and independent judgment,” this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance.

For the learned professions, an advanced academic degree (above the bachelor level) is a standard prerequisite.

For the artistic professions, work in a “recognized field of artistic endeavor” includes such fields as music, writing, the theater, and the plastic and graphic arts.

Questions may arise why the law which covers employees in the computer software field doesn’t allow for exemption. The exemptions don’t apply to technical writers. Even if you only write labels for the CDs.

Simply put:

employee in the computer software field

Except as provided below in paragraph 5, an employee in the computer software field who is paid on an hourly basis shall be exempt under the professional exemption, if all of the following apply:

1. The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment.
2. The employee is primarily engaged in duties that consist of one or more of the following:
   • 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 documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
3. The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of the exemption.
4. The employee’s hourly rate of pay is not less than $41.00 [the rate in effect on September 19, 2000]. The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. Click here for adjusted rate information (pdf) (doc).
5. The exemption described above does not apply to an employee if any of the following apply:
   1. The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering.
   2. The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision.
   3. The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.
   4. The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation.
   5. The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, either for print or for onscreen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the World Wide Web or CD-ROMS.
   6. The employee is engaged in any of the activities set forth in nos. 1 through 4 above for the purpose of creating imagery for effect used in the motion picture, television, or theatrical industry.