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What's a reasonable expectation for allowable uncompensated work?
January 5, 2012 8:55 AM   Subscribe

How common (or uncommon) is it for an employer to ask for employees to work extra, uncompensated time?

I work for a defense engineering firm. My workplace pays overtime to it's salary employees. Recently, however, they've moved to asking us to attend some meetings 'on our own time,' meaning uncompensated. This is really irritating me, so I want to get an outside perspective as to how common it is for an employer to do this, (and in what specific fields of employment.)
posted by garlic to Work & Money (19 answers total) 2 users marked this as a favorite
Common but still wrong (and often illegal).
posted by Oktober at 8:58 AM on January 5, 2012

By salaried, do you mean "exempt" (as opposed to "non-exempt")? DOL on FLSA.

I work for a law firm, attorneys are exempt. They work outside of 9-5, do trial prep, attend meetings, see clients, etc. They do not get paid more for it. I am non-exempt. I get paid OT whenever the boss needs me to work more as a matter of law.
posted by Brian Puccio at 9:06 AM on January 5, 2012 [1 favorite]

I'm assuming you're in the US based on your profile.

Whether or not your employer can require you to work overtime without paying you additional compensation depends primarily on whether or not you are exempt. If you are exempt, they don't have to pay you overtime - it's presumably included in your salary. Engineers who have engineering degrees or the equivalent and perform work of the sort usually performed by licensed professional engineers are exempt.
posted by slmorri at 9:07 AM on January 5, 2012 [1 favorite]

(just because you get paid a salary doesn't mean you are exempt)
posted by dpx.mfx at 9:10 AM on January 5, 2012 [4 favorites]

Many places that do software engineering and produce a product, especially a product you'd see in a box on store shelves, do this.

And to echo the others, yes, exempt means they can do it. Offering OT (EWW I think you and I call it) is nice, but not required by law, YMMV by state. The CA employees have some interesting coverage on that.
posted by k5.user at 9:10 AM on January 5, 2012

As an exempt employee, this can be common depending on your company, product, work culture, or influence of a manager. If it rarely happens (a handful of times or less, give or take), then it's nothing to worry about. If the extra working time is persistent and unceasing (months), then this is usually the sign of a dysfunctional work culture and/or bad management - tidy up the resume.
posted by seppyk at 9:23 AM on January 5, 2012 [5 favorites]

In business and IT it is extremely common, and thoroughly immoral and exploitative.

This was one of the several hundred reasons I got out of business/IT.
posted by Decani at 9:47 AM on January 5, 2012 [2 favorites]

IAAL, IANYL, and dpx.mfx is correct. Please disregard the answers here that suggest this is lawful. What you've described almost certainly is not.

Based on the facts you've provided, you are not likely to be exempt. To be exempt, you must satisfy both a "duties" test and a "salary" test. It's possible you satisfy one of the duties tests, which literally depends upon the nature of your job. But it's unlikely you satisfy the "salary" test, which basically requires that you receive the same amount of salary each week regardless of the hours of work. If your employer is paying you overtime, you are probably not exempt under the salary test as you're not receiving the same amount of compensation each week regardless of the hours of work.

The consequence of not being exempt is that you must be paid for every hour that you work, and you must be paid overtime for hours exceeding 40 in a week. This is according to the Fair Labor Standards Act; there are analagous state laws that have similar but slightly different formulations.

So, whether this is common or not, it is likely illegal under the facts as you've described them. If you wanted to take action you could contact the Department of Labor, your state's equivalent of the DOL, or a plaintiff's employment lawyer, who would absolutely love this. (The search term for this is "wage and hour," by the way).
posted by MoonOrb at 10:13 AM on January 5, 2012

Based on the facts you've provided, you are not likely to be exempt.

He has not provided us anywhere near enough facts to make that determination.
posted by slmorri at 10:30 AM on January 5, 2012 [3 favorites]

I think the DOL clearly and unambiguously states that OP is not subject to the federal wage/hour stuff.

(Interesting to see computer programmers are also exempt from them..)

State laws may differ..
posted by k5.user at 10:31 AM on January 5, 2012

He has not provided us anywhere near enough facts to make that determination.

And the presumption is that a given employee is not exempt until it is shown that he or she meets the exemption requirements.

I am a lawyer, but I am not your lawyer and this is not legal advice.

OP, it is possible that your employer is breaching an implied or written contract by varying the terms of your compensation. In some states, even an employee handbook can constitute an employment contract. You should consult an employment / civil rights[*] lawyer on this.

* Civil rights practice often overlaps with employment practice, and in my experience a "civil rights lawyer" is more likely to be employee-friendly than an "employment lawyer" (who is likely to be management-friendly).
posted by gauche at 10:36 AM on January 5, 2012

In direct response to the OP's question, "How common is it...", it is very common.

A related question is, "How many employers unwittingly violate the FLSA?" I know of many labor and employment lawyers who assert that they almost never see an FLSA audit which doesn't turn up some sort of FLSA violation.
posted by QuantumMeruit at 10:47 AM on January 5, 2012

Many places that do software engineering and produce a product, especially a product you'd see in a box on store shelves, do this.

Also, government contractors doing software engineering. These contractors work for companies you've never heard of, and the results of their efforts may or may not ever be used by the government, but deadlines are often imposed by management which create the need for overtime (which is rarely compensated for, in my experience).
posted by Rash at 10:48 AM on January 5, 2012

Looking at the DOL site, it doesn't say anything about being exempt being based on if your salary changes week to week based on the hours you actually worked.

My employer certainly believes me to be exempt. They also will pay me less if I work 39 hours, and more if I work 41, charging to a project.
posted by garlic at 11:06 AM on January 5, 2012

I am a lawyer; not your lawyer; not legal advice.

k5.user is wrong. Very few people are "not subject to federal wage and hour law". Wage and hour laws are very broad. They generally require that people get paid at least minimum wage and overtime for more than 40 hours.

There are some positions which are exempt from the overtime requirements of the wage/hour law. Those people, as stated above, must meet both a salary test and a duties test. there is no where near enough information her to determine if the OP meets either of those tests. The "professional" exemption doesn't apply just because someone seems to be "professional." It can sometimes be a very nuanced test. same for administrative, computer, and sales exemptions.

The wage hour laws are complicated, and, as QuantumMeruit states, almost everyone who employs everyone is violating them in some way. Partly I think this is because everyone thinks they know what it means to be exempt/nonexempt, partly its because the laws are complicated, rarely is it because the company just doesn't care (although sometimes it is).

on preview: If the amount of your "salary" changes based on the number of hours you work, then your employer almost certainly does not consider you "exempt". There are two things going on here: some people are paid HOURLY (based on the number of hours you work). This is the default method of paying people. Some people are paid a SALARY (this means you get paid the same every week).

Some people are EXEMPT from the requirement of being paid overtime. These people must always be paid on a SALARY basis. However, not all people who get paid a salary are exempt from the requirement to be paid overtime.
posted by dpx.mfx at 11:15 AM on January 5, 2012 [1 favorite]

When you say "meetings" do you mean meetings with clients/things directly related to your job or do you mean industry/networking/education conference-y kinds of things?
posted by mskyle at 11:48 AM on January 5, 2012

They also will pay me less if I work 39 hours, and more if I work 41, charging to a project.

This is the essence of the problem. If your employer pays you based on the amount of hours you work, they are functionally treating you as if you earn an hourly wage. So if you get paid more in weeks when you work more, and less when you work less, this is (speaking quite generally) the functional equivalent of an hourly wage. If so, the FLSA requires overtime pay.

For example, here's a quote from a case where altering pay based on weekly hours worked meant employees who otherwise would have been exempt did not meet the salary basis test:

"The lieutenants' pay plainly varies every paycheck with the number of hours they are actually scheduled to work. While lieutenants receive a constant amount over an eighteen week period, their pay is not constant over their two week pay period; it fluctuates as a function of scheduled work. This fact points persuasively to the conclusion that under the ... pay scheme the lieutenants were not paid on a salary basis."

Thomas v. County of Fairfax, 758 F.Supp. 353 (E.D.Va.1991).

Now, I'm simplifying, of course, and there are circumstances when an employer can reduce pay based on temporary work shortages.

But the limited facts you've presented raise a strong possibility that you're not, in fact, exempt so long as the amount you're paid depends on the amount of hours that you work.
posted by MoonOrb at 12:31 PM on January 5, 2012

Could the govt contract the OP is working on require OT for billable work? So he gets OT for contract specific billable work, but is otherwise an exempt employee. I think I remember hearing something about that type of situation before.
posted by COD at 3:35 PM on January 5, 2012

Just as another data point, my SO works for a defense contractor who mistakenly (or maybe purposefully) considered him to be exempt. To be fair most of the employees actually were exempt. No one needed to file a lawsuit but the company was forced to pay two years of back pay and now they must honor OT.
posted by boobjob at 3:57 PM on January 5, 2012

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