California Labor Law: A Tale of Two Hard Drives
By Gordon Gibb
Sacramento, CA It used to be not long ago that a hard drive described slugging it out behind the wheel. Nowadays a hard drive is the term used to describe storage of data and the guts of the computer to which our lives are irrevocably tied. But in California there is a link between the two??"for the purposes of this article anyway??"given various California labor laws and attempts by various entities to flaunt the law or change it.
Take the hard drive that represents life in the truck cab. Truck drivers in California put in long hours. One might think that sitting on one's duff all day does not constitute work but the opposite is true. The truck driver may be sitting for a good part of the time, but he or she is responsible for piloting a vehicle weighing several tons safely along a road with other cars. There's the load to think of??"getting it on and taking it off??"the logbook, the payload roster and, when on the road, all that shifting. You haven't really used a clutch until you've driven a big rig.
It's a tough life. So imagine California Attorney General Jerry Brown's dismay when he found more companies allegedly exploiting their hard-working drivers by illegally classifying them as independent contractors. As such, an employer can get out of paying overtime, payroll taxes, health care costs and worker's compensation by classifying an employee as an independent contractor.
The Associated Press reported late last month that three additional trucking companies doing business at the ports of LA and Long Beach had been accused by Attorney General Brown of committing tax fraud and breaking labor laws. That brings to 5 the number of companies that have been cited since Labor Day.
"Truck drivers at the ports work long hours under tough conditions," Brown said in a written statement. "These companies take advantage of their workers by failing to provide them with state-mandated protections and benefits."
And then there are those other hard drives??"the ones in your computer, or more specifically the hard drives over which computer programmers and specialists in California slave, day in and day out.
Due to the nature of the work, and of the industry itself, California has strict overtime statutes that are customized to the computer industry, although these always keep changing, and a new bill signed by California Governor Schwarzenegger in late September is already in effect.
The new law, California Assembly Bill 10 (AB 10) amends existing overtime exemptions contained in Section 515.5 of the California Labor Code for computer professionals. The amendments cover two primary areas: employee duties and compensation.
One change involves the simple change of a word, from the conjunctive 'and' to the disjunctive 'or.' Thus, the qualifier phrase 'highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering' which previously qualified for the overtime exemption, now reads 'highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, OR software engineering.'
Just a slight change. But what this does, it has been reported, is increase the number of computer professionals eligible for the overtime exemption.
As for compensation guidelines, the standard $36 per-hour threshold has been augmented by the identification of a yearly salary of $75,000, or a rate of at least $6,350 per month. In other words, computer professionals may be exempt from overtime if they earn $36 per hour or an annual salary of $75,000 (or greater) for full-time employment paid in monthly amounts of not less than 1/12th the annual salary.
Fans of the change say that this will streamline the process. And, of course, it allows employers to minimize their potential overtime liability??"a cost that is difficult to control??"by identifying a greater number of computer professionals who would not qualify for overtime.
However, critics say this favors the employer and is a loss for any employee who, before the law took effect may have been regularly claiming overtime. The sudden inclusion into exempt status for them represents a loss of income.
A number of California computer professionals have litigated against their employers for freezing them out of the possibility for overtime, due to misclassification??"either accidental, or deliberate. It's hard to determine what effect this latest update to the law will have. However it's safe to say that if you're a California computer professional and you have any questions about the work you do vs. the manner in which your employer has you classified, a consultation with a California Labor Law lawyer would go along way in helping you determine your rights in an ever-changing environment.
Take the hard drive that represents life in the truck cab. Truck drivers in California put in long hours. One might think that sitting on one's duff all day does not constitute work but the opposite is true. The truck driver may be sitting for a good part of the time, but he or she is responsible for piloting a vehicle weighing several tons safely along a road with other cars. There's the load to think of??"getting it on and taking it off??"the logbook, the payload roster and, when on the road, all that shifting. You haven't really used a clutch until you've driven a big rig.It's a tough life. So imagine California Attorney General Jerry Brown's dismay when he found more companies allegedly exploiting their hard-working drivers by illegally classifying them as independent contractors. As such, an employer can get out of paying overtime, payroll taxes, health care costs and worker's compensation by classifying an employee as an independent contractor.
The Associated Press reported late last month that three additional trucking companies doing business at the ports of LA and Long Beach had been accused by Attorney General Brown of committing tax fraud and breaking labor laws. That brings to 5 the number of companies that have been cited since Labor Day.
"Truck drivers at the ports work long hours under tough conditions," Brown said in a written statement. "These companies take advantage of their workers by failing to provide them with state-mandated protections and benefits."
And then there are those other hard drives??"the ones in your computer, or more specifically the hard drives over which computer programmers and specialists in California slave, day in and day out.
Due to the nature of the work, and of the industry itself, California has strict overtime statutes that are customized to the computer industry, although these always keep changing, and a new bill signed by California Governor Schwarzenegger in late September is already in effect.
The new law, California Assembly Bill 10 (AB 10) amends existing overtime exemptions contained in Section 515.5 of the California Labor Code for computer professionals. The amendments cover two primary areas: employee duties and compensation.
One change involves the simple change of a word, from the conjunctive 'and' to the disjunctive 'or.' Thus, the qualifier phrase 'highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering' which previously qualified for the overtime exemption, now reads 'highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, OR software engineering.'
Just a slight change. But what this does, it has been reported, is increase the number of computer professionals eligible for the overtime exemption.
As for compensation guidelines, the standard $36 per-hour threshold has been augmented by the identification of a yearly salary of $75,000, or a rate of at least $6,350 per month. In other words, computer professionals may be exempt from overtime if they earn $36 per hour or an annual salary of $75,000 (or greater) for full-time employment paid in monthly amounts of not less than 1/12th the annual salary.
Fans of the change say that this will streamline the process. And, of course, it allows employers to minimize their potential overtime liability??"a cost that is difficult to control??"by identifying a greater number of computer professionals who would not qualify for overtime.
However, critics say this favors the employer and is a loss for any employee who, before the law took effect may have been regularly claiming overtime. The sudden inclusion into exempt status for them represents a loss of income.
A number of California computer professionals have litigated against their employers for freezing them out of the possibility for overtime, due to misclassification??"either accidental, or deliberate. It's hard to determine what effect this latest update to the law will have. However it's safe to say that if you're a California computer professional and you have any questions about the work you do vs. the manner in which your employer has you classified, a consultation with a California Labor Law lawyer would go along way in helping you determine your rights in an ever-changing environment.
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