California Software Developers: A Reality Check on Overtime, Overdue

San Francisco, CAIt would be an interesting exercise to focus a webcam on a roomful of computer workers—and a clock—to gauge just how many hours you, and your colleagues are working, and to guess as to whether or not you're being paid the overtime you may be owed for working those long hours.

The fact remains that there are strict rules for the payment, or exclusion of payment of California overtime for development professionals.

Even though the threshold levels have changed in favor of the employer, you still might be in the position of being stiffed for the overtime that is officially your right. That denial might be happening simply because your employer is dishonest. Or, it may be happening simply because you haven't verified what your classification is, and how the work you actually do, actually compares to the classification your employer has bestowed upon you.

It wouldn't be a bad idea, if you are a California software developer, to at least look into it…and you would be well-advised to retain the services of a lawyer to do that for you, such are the complexities and nuances of the exemption statutes. If your employer is in the clear and everything is on the up-and-up, then you at least have that assurance—and you're armed with precious information in case, at some point down the road, your employer decides to pull a fast one on you, or transfers ownership of the company to someone that does.

If you find that you should have an actionable case, take heart that precedent is on you r side, as the trend towards State court forums shows no sign of abating. In fact, in the State of California there are multiple class actions filed in State court on a daily basis.

There are a number of reasons for this, according to those in the know in the legal world. First and foremost is the fact that California's wage and hour laws differ in subtle, yet important ways from federal law. This allows an employer to be compliant with federal law, but not necessarily with California State law. Secondly, procedural rules in the State of California make it far easier to file a class action, or a collective action than other jurisdictions.

Third, California's unfair competition law allows claimants to borrow violations from other laws, but at the same time extends the statute of limitations to four years. That tends to make class actions more lucrative in the end. And finally, many of the labor codes in California Labor Law provides for the recovery of attorney's fees.

You may think that as a highly skilled, and highly paid white collar professional, you may not qualify for overtime. Or at least you've been told that. But you might—and you may be owed a goodly sum of back overtime, that you may be able to pursue.

The problem is often the emotional bullying that goes on in the workplace when it comes to additional, even legitimate compensation. Being told that 'you could be replaced tomorrow by a pimply kid who will do your job for bubblegum' does little to bolster your self-esteem. And the 'start-up' mentality, whether you are employed by a start-up company or not, is unethical and unhealthy. Providing a cot, or even a nicely appointed quiet room for naps, a dart board to blow off some steam and a well-stocked fridge is no substitute for proper rest and relaxation, and a change of scenery. Being part of a project team 'akin to family' is no justification for working 60, 70 or 80 hours weeks without proper compensation.

Either way, whether your employer owes you overtime—or you are quite properly exempt—you are being taken advantage of. No one, especially in a highly skilled arena that requires clear thinking and cognitive skills, can function on long hours and little rest.
Imagine what that web cam might see, looking back at you as you stare blankly at the computer screen, attempting to solve a software glitch or get the intricate code figured out. You can't think straight, let alone see straight. You are prone to errors, and it takes you many times longer to arrive at the same conclusion tired, as opposed to well rested and refreshed.

However, your employer doesn't see that. He sees the expectant faces of his shareholders, not your tired and exhausted face. She sees the bottom line, or the generous salary she is paying you, and wants to make sure she squeezes every last working hour she can out of you, even if it detracts from your health, your productivity, and even that of the company.

Working you to death as a salaried employee exempt from overtime is another issue, and one that can also be pursued in the courts. However, you may be typing your fingers to the bone and giving yourself a case of carpel tunnel at the same time as being stiffed for thousands of dollars of unpaid overtime.

Depending on the work you do, you may be mis-classified. You may also be legitimately exempt. But then again, you may not—but you'll never know unless you look into it.

Knowledge is power, and that power is not the sole bastion of the employer. California overtime statutes are there to protect California software developers and other professionals.

There could very well be a big payday for you at the end of a simple question. And a California overtime lawyer can help you answer it.