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The Senator, a Democrat from North Carolina, introduced legislation in October that would amend the Fair Labor Standards Act to place most information technology employees in a category that is exempt from receiving overtime. Why?
I wish I had a decent, rational answer to the “why”, because I cannot figure out how this 1) helps the economy, or 2) helps working professionals in the IT field. Here is the bill:
112th CONGRESS
1st Session
S. 1747
To amend the Fair Labor Standards Act of 1938 to modify provisions relating to the exemption for computer systems analysts, computer programmers, software engineers, or other similarly skilled workers.
IN THE SENATE OF THE UNITED STATES
October 20, 2011
Mrs. HAGAN (for herself, Mr. ISAKSON, Mr. ENZI, and Mr. BENNET) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions
A BILL
To amend the Fair Labor Standards Act of 1938 to modify provisions relating to the exemption for computer systems analysts, computer programmers, software engineers, or other similarly skilled workers.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘Computer Professionals Update Act’ or the ‘CPU Act’.
SEC. 2. AMENDMENT TO THE FAIR LABOR STANDARDS ACT OF 1938.
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
‘(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).’.
Jill Clausen at Daily Kos:
So what does it mean to be “an employee in a professional capacity” under The Fair Labor Standards Act? It means your employer is exempt from having to pay you for your overtime hours.
Sec. 213
§ 213. Exemptions
(a) Minimum wage and maximum hour requirements
The provisions of sections 206 (except subsection (d) in the case of paragraph (1) of this subsection) and section 207 of this title shall not apply with respect to—
(1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of subchapter II of chapter 5 of Title 5, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities);
In other words, as of today, Saturday, December 10, 2011, a person working in the IT profession who is paid hourly at any rate of pay, or who is salaried at a minimum of $23,660 per year, is entitled by law to be compensated for their overtime work that is in excess of 40 hours per week. That covers just about everyone working in IT.
If Ms. Hagan’s bill is passed, IT staff making $27.63 per hour or more, or $23,600 per year or more, will no longer be eligible for overtime compensation by law.
Backing up a bit — this is relevant to discuss that generally, IT jobs vary greatly — from the help desk person, to a programmer to a network engineer to a project manager, you’re talking apples and oranges. The first problem that comes to mind is the fate of the programmers who work on your favorite first-person shooter games. The creation of the most popular high-end games involve a LOT of person-hours; it’s not uncommon for a programmer to work 100+ hours in a week to get a game to release. What is going to result if none of those overtime hours are going to be paid? Well the work will not get done in time (after all, who is going to work for free), and it will cost the software company more since they will have to hire more staff to get the job done if no one is working overtime.
Unless, of course, they are made fully exempt — meaning you work until the job is done. The jobs would no longer be hourly, but salaried. I don’t see that in the above, but I’m not proficient at parsing legislation/legalese.
What I can say, since I work as a manager in IT (albeit in an academic setting, not corporate environment), is that all of my staff is salaried/exempt, therefore there is no overtime; of course as a manager, I am also exempt, and cannot be paid OT. However, the environment is not a production one, as is the case in most of the jobs in IT we’re talking about being affected by this legislation.
Research Triangle Park, here in NC is home to a huge number of IT workers in science, technical and medical fields, and would be profoundly affected by Hagan’s legislation. Would this mean even more IT jobs would convert from staff to consulting positions? This has been the way companies have gotten around paying health and fringes to programmers, for instance — just hire them on a contract basis and cut them loose when a project wraps or profits fall short.
This seems part of a larger attack on what has always been seen as a promising fields for a person to a make a good living for themselves and their family using highly developed, trained professional skill sets. How does this benefit the country, Senator Hagan? Or does it keep more profits in the pockets of corporations at the expense of the 99%?
Senator Hagan, please explain to me how this helps our state?
►►► Phone Senator Hagan’s offices ◄◄◄
| DC Office: 202-224-6342 | Greensboro Office: 336-333-5311 |
| Raleigh Office: 919-856-4630 | Charlotte Office: 704-334-2448 |
| Asheville Office: 828-257-6510 | Greenville Office: 252-754-0707 |
6 Comments
I’m a software engineer. I remember during one of my jobs (which was in part to maintain a large production code base), I noticed early on that some of the code was well written and designed, and other parts of the code were junk that needed a lot of work (for example, there was about a 15 line long multi-varible equation that could have been written as a single, simple arithmetic operation (and later was, by me).
It took a few months before I learned that much of both sets of code were written by the same person.
You see, the “good” code was mostly written between, say, 11 am and 5 pm. the “bad” code was written much, much later – apparently much of it after 1 am. He had regularly been working 70-hour weeks.
In other words, a software engineer without enough sleep is a bad software engineer, regardless of how good they are at their peak.
And, yes, this is true of me as well.
This won’t affect me at all, since system administrators have pretty much always been non-qualifying anywhere I’ve worked, so I’ve always been salaried exempt (since ’92).
That being said, I still think it’s wrong. If I’m on call, for example, and get called out for something, I don’t get any compensation for that. Or for just putting my life on hold so I can be available. And that’s not always a “well, it’s once a quarter” thing. Try every other week.
Reading this carefully, interpreted broadly, this could cover quite a few people. I’ll contact my Senators, even though I don’t expect anything out of them.
@dagard-
I think that in general, we need to unionize – largely around overtime. The one union shop I worked at gave OT (yes, it was only straight pay, and it only started at over 45 hours/week, but it was something – and it usually more than offset my additional expenses for working those extra hours). I can’t recall a single other place I’ve worked for that has.
To be clear, OT (as in over 40 hours/week) is a way of life in my field. In most companies I’ve worked for, someone in my field working “only” 40 hours during a week means they were either out sick or on vacation.
Heck, I recall one particularly bad week where I worked 80 hours – and I only logged that little time because I was out sick one day. Most of the others in my team exceeded 95 hours that week.
Why?
Sen. Hagan is and always has been a corporatist politician. She operates under the naive belief that by joining forces with Senators Enzi (R-WY) and Isakson (R-GA) she is ushering in an era of bipartisanship. Her support for this legislation is no more than a hat tip to corporate America. Moreover, she is a believer in
This was not the only bill she sponsored in October. She and Sen. McCain sponsored the Foreign Earnings Reinvestment Act in another show of bipartisanship. That legislation was an ~$300 million bounty to American corporations that shelter profits abroad. In return for the repatriation of an expected $1 trillion in profits, those earning would only be taxed at rates between 5.25% and 8.75% in lieu of the normal 35% corporate tax rate. Sen. Hagan spun that legislation as a jobs bill, notwithstanding the fact that US corporations are already sitting on about $2 trillion in cash. She held a press conference to unveil the legislation at the HQ of an international corporation based in Research Triangle Park, NC flanked by corporate CEOs and the Chamber of Commerce.
The only bipartisanship that legislation has garnered thus far has been opposition by both the Heritage Foundation and the Institute for Policy Studies.
Obviously I understand Sen. Hagan well. I was neither surprised by her introduction of these bills nor the parties that they benefit.
The answer should be blatantly obvious: her corporate owners want IT workers to be exempted.
Just her way of adding to the already high incentives to get advanced IT training.
-or-
After they get everyone in the US working for Wal-Mart wages, the USA! USA! USA! will be competitive once again.