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November 4, 2006 2:29 PM

How much power do employers have over salaried non exempt employees outside of work during normal business hours?

My current job has just informed me that I can look forward to 60-70 hour weeks starting in December and running at least until Mid-May. They have expected other employees to work from home, at nights, and on weekends before - these are all salaried non-exempt hours, so it is unpaid overtime. This spring I had planned on taking classes 2 nights a week as well as getting a second job on the weekends considering our pay is about 20% under local market. Can my employer insist that I skip class, drop class, or quit my second job in order to accommodate any work needed after I have put in 40 hours? Can they threaten to terminate me if I do not comply with that since it is done outside of the 40 hour week? I checked some sites on the FLSA but only found the disheartening fact that there is no upper limit to the hours a non exempt employee can be worked.

posted by anonymous to work & money (44 comments total)

They may not be able to force you to work more than 40 hours, but they can certainly stack-rank you against other employees to demonstrate that you are underproductive. Then they fire you.
posted by b1tr0t at 2:39 PM on November 4, 2006

How much power? As much as you let them have. The state agency that regulates wages and hours where you live may have something to say about your employer's practices.

I am curious about what makes a job with such a company, that pays 20% under market, worth trying to keep. To me, being "informed . . . that I can look forward to 60-70 hour weeks" with no additional compensation would be a tempting invitation to leave.
posted by Kirth Gerson at 2:48 PM on November 4, 2006

I'm submitter but this isn't my real account. I do software qa testing. Salary is 38k. As far as being required to work from home, our home internet use is not comped in any way. We've also been told that we have to tell them by next Friday of all time we're expecting to take off for the next 6 months. I'm looking at this like they're setting up to completely pwn us this spring and leaving altogether is a consideration. I just want to know what they legally can and can't tell me to do after I've worked 40 hours at the office.
posted by asockpuppet at 3:06 PM on November 4, 2006

You might do well to find a labor lawyer if the issue of firing comes up. You are guaranteed a 40-hour work week by law if no overtime is paid.
posted by Willie0248 at 3:13 PM on November 4, 2006

That's just wrong, Willie0248.
posted by grouse at 3:21 PM on November 4, 2006

No, sorry, I am wrong. I don't know how I kept reading "non exempt employee as "exempt employee."
posted by grouse at 3:23 PM on November 4, 2006

Oh crap. I'm sorry. I totally botched that question. I'm exempt. As in I do not get overtime. Now my question doesn't make any sense since I screwed that up. Too many pdfs on labor law have made me dumb. grrrr.
posted by asockpuppet at 3:27 PM on November 4, 2006

First, state laws and regulations often vary considerably from Federal requirements and you haven't mentioned the state. Therefore, I'm going to concentrate solely on the Federal Fair Labor Standards Act (FLSA).

Second, are you sure you've correctly defined yourself as a "salaried non-exempt employee"? The job position you describe "Software QA" sounds like a position that the U.S. Department of Labor would classify as a highly skilled computer-related position, hence you'd be classified as an exempt employee. Employees who qualify as "exempt" are exempt from overtime regulations (and minimum wage laws), whereas "nonexempt" employees must be paid for every hour of overtime they work. Since you appear to be an exempt employee, with respect to the FLSA you and your employer are free to negotiate your compensation and required number of hours as the two of you see fit (so long as Federal safety regulations aren't violated). If you agree to the hours and compensation but don't hold up your end of the bargain, your employer can fire you (modulo the Americans With Disabilities Act, Age Discrimination in Employment Act, Civil Rights Acts, etc.).
posted by RichardP at 3:31 PM on November 4, 2006

I did screw up my classification in the question, RichardP. I'm exempt.

I am looking for specific answers to:

Is this legal - Y/N

"Skip class or you'll be fired"
"Drop your classes or you'll be fired"
"Quit your second job, or you'll be fired"

State is IL.
posted by asockpuppet at 3:37 PM on November 4, 2006

Why do you want to work for a company that wants you to work a significant amount of overtime for 20% under industry pay? Screw them firing you or at the very least taking advantage of you, it sounds like it's time to look for a new job that won't compel you to work another one just to keep up.
posted by Kimberly at 3:39 PM on November 4, 2006

First off, I am not a lawyer, if you want a real answer to "Is this legal?" you should consult an employment lawyer licensed to practice law in Illinois. That being said, I'll offer my opinion.

In Illinois an employee can be classified as exempt only if their classification complies with both the Federal Fair Labor Standards Act (FLSA) and Illinois' Minimum Wage Law. From the facts you've provided, you're an exempt employee under both, so you're an exempt employee in Illinois. Illinois has several special "prevailing wages" regulations that might affect how much you can be paid, but they only apply to public works projects and certain state contracts and thus don't appear to apply to you.

Therefore, an exempt employee you and your employer are free to negotiate your compensation and required number of hours. You're under no obligation to agree to terms you find onerous and they're under no obligation to employee you at all if you can't come to an agreement. So, in my opinion, as an exempt employee in the state of Illinois, your employer is free to attach conditions to your employment such as "To work here you must agree to work 70 hours a week" or "To work here you must agree to not hold a second job." You can ask for additional compensation in return for agreeing to such conditions, but they're under no obligation to accept.
posted by RichardP at 4:10 PM on November 4, 2006

Argh.. that last paragraph was butchered. It should have been:

Therefore, as an exempt employee you and your employer are free to negotiate your compensation and required number of hours. You're under no obligation to agree to terms you find onerous and they're under no obligation to employ you at all if you can't come to an agreement. So, in my opinion, as an exempt employee in the state of Illinois, your employer is free to attach conditions to your employment such as "To work here you must agree to work 70 hours a week" or "To work here you must agree to not hold a second job." You can ask for additional compensation in return for agreeing to such conditions, but they're under no obligation to accept..

posted by RichardP at 4:13 PM on November 4, 2006

Actually there does appear to be one Illinois state regulation that might apply to your situation, the One Day Rest in Seven Act. According to the state web site:

Provides for employees a minimum of twenty four hours of rest in each calendar week and a meal period of 20 minutes for every 7 1/2 hour shift beginning no later than 5 hours after the start of the shift. The law allows employers to secure permits from the Department to work employees the 7th day provided that the employees have voluntarily elected to work.

So your employer can't force you to work both weekend days unless you volunteer, and even with your permission, they must secure an ODRISA Permit (which has a two week maximum per permit).
posted by RichardP at 4:20 PM on November 4, 2006

Illinois is an "at-will" employment state.

I believe this means you would probably be fired because "you're not getting your work done", even if that work load is impossible to finish in 40 hours.
posted by IvyMike at 4:23 PM on November 4, 2006

RichardP: I don't believe that applies to exempt employees, if you read the underlying law.
posted by grouse at 4:30 PM on November 4, 2006

grouse, if you review the law in question you'll see that the employee classifications that are exempt from ODRISA are different than those exempt under FLSA. In particular, from my reading of ODRISA it does not appear to include the computer employee exemption. This is why I suggested it might apply to the original poster (since he or she works in Software QA).
posted by RichardP at 4:36 PM on November 4, 2006

Before Congress added a special statutory exemption for computer workers in 1996, many were considered exempt because they were "professional workers." One would not expect that they automatically ceased to be professional workers because a new exemption was specifically added for them.

Of course, the Illinois Department of Labor would be able to answer this better, as for all of these questions.
posted by grouse at 4:56 PM on November 4, 2006

Personally, I would treat it as if you've been given a month's notice and go find another job. Regardless of the legalities, you're working for a company that's happy to screw you over -- they'll eventually do so one way or another. Probably sooner rather than later if you start talking about legal action.
posted by tkolar at 5:09 PM on November 4, 2006 [1 favorite]

grouse, I agree, some computer workers also fall under the learned professional exemption, which is indeed included in the ODRISA. In at least one case, before the introduction of the computer workers exemption, employees who were performing software testing were ruled to not meet the criteria for the learned professional exemption. It isn't clear to me that the original poster would quality for the learned professional exemption (for example, I'm guessing the original poster doesn't have a degree since he or she is considering taking classes).
posted by RichardP at 5:15 PM on November 4, 2006

You know, I can already tell this is a situation in which, if you are extra-diligent and you avoid all the bullshit time wasters that most people engage in over the course of an office day, and you manage to get all of your work done in a 45-hour work week (possible!), then they'll still be watching you leave earlier than everyone else, and you may still get hell for that.

IANAL, they have absolutely no right to dictate your working hours or extra curricular activities. They also have no obligation to keep you on the payroll as an exempt employee, either.

Based on everything you've said, I approve of you pursuing your other goals, and I think you should go for them regardless. Assume that you'll be looking for another job soon, but don't think of it as a punishment or as a personal defeat - a lot of companies would be lucky to have a motivated worker like you who is striving for self-improvement and who is keenly aware of their situation. You need to find one of those companies, or you need to make your current company prove that they appreciate your reasonable and adequate efforts. Unless they're about to go under (and even then, what obligation do you have unless you're a stockholder?), you really should not think that you owe them all that time. If they're paying you 80% of the market rates, they're lucky to be getting 100% market working hours from you. I say, act on it, and the worst you'll end up with is unemployment insurance for a short while.

(I don't want to minimize the impact of losing your job: it is very tough to find work nowadays, surely, but you have to have faith that you can find work without your neck under someone's boot. Otherwise, how do you get up in the morning?)
posted by brianvan at 5:15 PM on November 4, 2006

To kind of directly maybe answer your question, I very seriously doubt that they can explicitly forbid you from taking classes or a second job, but they almost certainly can require that you do an ungodly amount of work that would preclude you from engaging in those extracurricular activities. The fact that you would have to give up some non-work activities in order to fulfill your obligation to the company is irrelevant.

Which, as others have also pointed out, is not to say that you have to stay there and take their shit.
posted by Doofus Magoo at 5:31 PM on November 4, 2006

Huh. either they're trying to squeeze you, or they're trying to get you to quit (to outsource to H1-Bs or overseas)? As a programmer, there's no way I'd want to take QA from someone doing six months of 60-70 hour weeks. People just can't sustain that and sustain a decent error rate.

So I'd say, it's time to leave. Do it quietly, and quietly encourage your fellow employees to leave too.
posted by orthogonality at 5:53 PM on November 4, 2006

I would call the IL state bar and ask for a referral to a labor lawyer. She/he can answer that question within the initial consultation period covered by the minimal fee charged by the bar association referral.

If, however, the lawyer tells you the same thing as this thread tells you, then you really need to look for another gig. That's an absurdly low salary to qualify for "exempt" status.
posted by dejah420 at 5:55 PM on November 4, 2006

*shrug* You're drawing a salary rather than an hourly wage. The employer can expect you to work 168 hours/week for that salary, if they wish. You can quit, if you wish. That's the bargain. The government isn't going to magically step in and make them pay you more for less work, or make them be nice to you.

You apparently don't like the bargain offered. That's perfectly fine.

I would suggest that you not work long hours, that you go ahead and make your education plans, and that you look around for a better job. When you've located that job, quit, or let them fire you.
posted by jellicle at 7:08 PM on November 4, 2006

The employer can expect you to work 168 hours/week for that salary, if they wish.

Comments above yours in this thread have demonstrated that that is not the case. It's also not the case either that he can expect a 40-hour rule, but unless you have some evidence that the people citing Illinois labor law missed, it's probably counterproductive to throw numbers around like that.
posted by mendel at 7:55 PM on November 4, 2006

If IL is an at-will state, they can terminate you at any time for no reason at all. However, you can sue for unfair dismissal, and they will probably settle. I would suggest signing up for college, and looking for another job. If you find another job then great. If you don't, then go to your college classes anyway. Only you know how likely they are to fire you for this, it depends on the company and how afraid they are of lawsuits. I work for a company in CA that routinely asks people to work unpaid overtime for several months at a time, people have refused, and nothing has come of it because thye know the unfair dismissal settlement isnt worth it. YMMV of course.
posted by Joh at 9:10 PM on November 4, 2006

You're asking the wrong questions.

They, of course, cannot force you to not take classes or not eat peanut butter or only watch movies with Tom Cruise in them.

What they can do, being in an at-will state, is fire you for any reason, or no reason whatsoever, as long as that reason is not discriminatory.

Being employed in an at-will state with no contract means that at any given day, you are at risk of your employer walking up to you and saying "we no longer require your services".

It would be trivial once the long hours are expected to compare you to a peer, show lower productivity, and easily avoid any unfair termination worries.

And, if you have any disciplinary action of any kind currently in your HR file, you might as well turn your notice in Monday.
posted by Ynoxas at 9:15 PM on November 4, 2006

I am part owner of an IT consulting firm in Chicago -- and no, we didn't just demand that the OP start working 70 hour weeks. My advice to you is to get out of the software QA business entirely. The market is pretty good right now for business analysts and project managers. But QA is going overseas. It's easy to outsource, and the quality of the offshore QA work is very high. BAs and PMs aren't going anywhere. Refuse to work the extra time -- and use your evenings to look for an entry level BA job.
posted by centerweight at 10:25 PM on November 4, 2006

The newspaper today said unemployment has reached a 5-year low. That almost certainly means that businesses are hurting trying to find decent employees. That in turn means you don't need to take crap like this. You are the scarce commodity right now, sell for a better price elsewhere.
posted by -harlequin- at 10:35 PM on November 4, 2006

This is something that always cheeses me off. They'll tell you that there's so much work that you have to work 80 hours a week for no additional pay. You're exempt, so you do it. Then, in four months, they say that there is so little work that you must take vacation time. Oh, I see, so I'm exempt when there's too much work, but not when there's too little?

Please, I beg you, get your boss to send you e-mails telling you you have to quit your classes. Save these e-mails. Then keep going to your classes (and, as much as possible, get your work done). Then, when they fire you, sue them until they bleed from their eyes.
posted by jlub at 11:34 PM on November 4, 2006

Sign up for your classes and whatever else.

Here's the thing -- most people do not work 8 hours a day. People do like to brag about how overworked they are, though. If you want to, you can likely get that OMG 80-hours! worth of work done in your 40 hours, if you work efficiently.

You'll get some stupid harshing from your coworkers, but if anyone asks why you don't stay late, you say 1) I'm on track for my deadlines and responsibilities, so I'm leaving and besides, 2) Personal responsibilities call. Sorry, dude...gotta go.
posted by desuetude at 10:18 AM on November 5, 2006

This spring I had planned on taking classes 2 nights a week as well as getting a second job on the weekends considering our pay is about 20% under local market.

Did you register for classes or get hired to that second job yet? If so, you could explain that you already have these commitments (and will lose $X amount if you have to cancel/quit, etc). Doesn't mean that all the stuff mentioned above (er, getting fired) still won't happen, but you'd have a stronger case if you were already set up for the spring than if it was just something you planned on doing. At least, in my office that's the way it is. If we ask you to work extra and you're already committed elsewhere, whether it be school, family, another job, etc, we don't hold that against you. Also, have they mentioned any sort of bonuses or incentives for your extra time over the next six months?

Like everyone said, they can't make you quit your other job or school, but could fire you or make your life so crazy that you have to quit the other stuff to stay sane. I'd consider looking for a job that pays market (so you don't need a second job) and that has a tuition benefit as well.

One more thing, is it just you? Are there other people doing your same job or working on the same project without this stipulation? If so, I'd start looking now.
posted by ml98tu at 1:04 PM on November 5, 2006

<european>

Force your employer to behave in a civilized manner by joining a trade union - along with as many cow-orkers as you can muster - and taking collective action to give yourselves a stronger footing.

</european>
posted by genghis at 3:44 PM on November 5, 2006

Now there's a voice of reason. No, I am not being sarcastic. Situations such as the OP's are to be expected when employees don't act as a group to further their interests.
posted by Kirth Gerson at 4:44 PM on November 5, 2006

genghis: in the States, salaried employees aren't allowed to form unions.
posted by eustacescrubb at 7:21 PM on November 5, 2006

eustacescrubb: Then how do you explain the large number of teachers' union? Get real.
posted by grouse at 12:30 AM on November 6, 2006

Are there other people doing your same job or working on the same project without this stipulation

It's everyone. Probably around 35-40 people were told this in a meeting.

One of my coworkers that has joint custody of his child had to report to his boss what days he has care of him. That's part of what made me think they were going to be invasive as to how we spend our time outside of work.
posted by asockpuppet at 5:09 AM on November 6, 2006

grouse: teachers are a notable exception. But by and large, so-called "white collar" employees can't form unions that are protected by labor law.
posted by eustacescrubb at 6:37 AM on November 6, 2006

eustacescrubb: Given that you cannot provide any support for your statement, I think it is fair to conclude that it is not true. I would supply other counterexamples, but you would doubtless refer to them all as "exceptions."

To the OP: if you want to start organizing a union, the Communication Workers of America has a site on organizing for high-tech workers. It includes testimonials from white-collar salaried workers at Microsoft and IBM who have engaged in union organizing, which others would have you believe is impossible.
posted by grouse at 6:52 AM on November 6, 2006

grouse: I'm perfectly willing to admit that I've misunderstood the way labor law works, but then I suppose you'd have to provide support (in the way of links, perhaps) for your statements. (In fact, in this particular case, I'd be happy to be wrong.)

Focus on helping the OP; there's no reason to cop an attitude.
posted by eustacescrubb at 7:18 AM on November 6, 2006

One of my coworkers that has joint custody of his child had to report to his boss what days he has care of him. That's part of what made me think they were going to be invasive as to how we spend our time outside of work.

Maybe they asked because they wanted to know when he would be available given his limited schedule. I'd hope it's not to dictate when he can see his child or reduce the amount of time he cares for his child. I'm trying to find the positive here, but it seems rather unfair that they'd accommodate him and not the other parents or folks with obligations if that is indeed the case.

Are you comfortable enough with your immediate supervisor that you could ask if you will still be able to take your classes? I wouldn't mention the second job when you do so. If your classes directly contribute to your job, even better.
posted by ml98tu at 8:27 AM on November 6, 2006

The advice to organize a union is reasonable and helpful.

Well, the OP will not likely get that union formed in time to fix this particular problem. So, moving on:

How does that co-worker feel about being asked for his visitation schedule? Is he someone that you could casually ask? I'm not saying you should form a revolt, but other people may be quietly putting their foot down and/or talking to HR about the way this situation was presented. "This is going to be a busy time, all hands on deck" is quite a bit different than "I own your ass."
posted by desuetude at 8:37 AM on November 6, 2006

If you do feel the environment is becoming oppressive (which from all sounds, it is) then it might be in your best interest to begin union formation activity IMMEDIATELY.

I can't cite chapter and verse, but basically if you make it obvious that you are actively organizing a labor union, then the management would be terrified to terminate you due to the obvious rebuttal by you that you were fired due to organizing, which has several layers of protection.

This is a bit dishonest on your part, especially if you don't give two whits about a union, or if it has no real chance of passing.

However, this would buy you time to find a less oppressive environment.

But please remember: they can fire you for any reason, or no reason whatsoever, as long as it is not discriminatory. Wrongful termination, in an at-will state, is very hard to prove. And as I said, if your personnel file is not completely unblemished, you would have no chance at all.

Take the advice of almost everyone here and find a new job now.
posted by Ynoxas at 9:41 AM on November 6, 2006

[a few comments removed. seriously, take this grudge to metatalk or email and stop crapping in this thread.]
posted by jessamyn at 3:17 PM on November 6, 2006