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May 16, 2008 1:17 PM

I'm a software developer in Pennsylvania. Am I eligible for overtime?

I haven't lived in Pennsylvania (PA) all that long. At past jobs, the state law on overtime always followed the federal law. That is, computer workers are not eligible for overtime.

Recently a friend of mine forwarded me to a page that describes the law in Pennsylvania:

http://www.dli.state.pa.us/landi/cwp/view.asp?A=142&Q=214574

The language is somewhat obscure and ambiguous. At the top it states:

"However, the federal Fair Labor Standards Act (FLSA) and Pennsylvania’s Minimum Wage Act do not require overtime pay for “any employee engaged in a bona-fide executive, administrative, or professional capacity” who is paid on a salaried basis instead of an hourly wage. (29 U.S.C. § 213a(1), 43 P.S. § 333.105a(5))."

But, then in a lower section it states:

"Pennsylvania employers must be aware that the federal or Pennsylvania overtime provision that provides for the greater benefit to the employee is the standard that will be enforced. An employer must pay overtime if the new Federal rules or Pennsylvania law requires overtime payment.

For example, the Federal rules do not require overtime for computer employees. However, Pennsylvania law currently requires overtime for computer employees. accordingly, overtime must be paid to computer employees if there are no other Pennsylvania laws excluding these employees from overtime."

Anyone have any ideas? It's ambiguous to me, because I'm salary. But, I'm also a computer worker, and I'm not a professional. But, then again no salaried computer worker working in PA that I know gets overtime. But, it's also a big deal, because it could be worth over $90k to me.

posted by brandnew to law & government (10 comments total)

as far as i know, if you are salaried in any job, you will not be paid overtime.
posted by violetk at 1:34 PM on May 16

State Law

Unlike Federal law, Pennsylvania State law does not relieve the employer from providing overtime pay to computer professionals based upon the duties tests adopted by the Federal government (and listed above). Instead, Pennsylvania operates under its well-established regulations that in order for a computer professional to be exempt from overtime requirements, he/she must meet the requirement for one of the exemptions allowed by Pennsylvania law found at (34 Pa. Code §§ 231.81 - 231.85).

Typically, the exempt computer professional in Pennsylvania falls within one of the following classifications:

1) Executive — whose primary duty is the management of the enterprise and is paid a salary of at least a $255.00/week salary; or

2) Administrative — whose work is directly related to the management of general business operations of the employer and is paid at least a $255.00/week salary; or

3) Learned Professional — whose primary duty must be the performance of work requiring advanced knowledge and which involves consistent exercise of discretion and judgment, administrative or professional employee, as each of those terms are defined under state law, and who is paid at least a $255.00/week salary.

Be advised, however, that many computer related jobs that exist in Pennsylvania will not be considered exempt from overtime, as they usually do not fall within Pennsylvania’s interpretation of the above stated exemptions, or because the positions do not pay on a salary basis.

source: http://www.bipc.com/news.php?NewsID=1440

hope that helps... "computer professional exemption" is the phrase you might want to google for more info...
posted by drjimmy11 at 1:39 PM on May 16

What violetk said, except that technically the correct labor slot is "exempt", not "salaried" (as in: exempt from minimum wage/overtime wage labor laws). It's federal law that requires overtime be paid to non-exempt workers; I don't know of any state law that would require overtime to exempt workers.

Given how drastically that would affect business in the state, and the attractiveness of that state to industry, I doubt any laws do force overtime on exempt workers - but that's a mere guess.
posted by IAmBroom at 1:41 PM on May 16

If you are salaried AND exempt.
I worked in PA a long time ago in a salaried position, but was non-exempt, so I did get paid overtime. A lot.
I was a 'computer worker', but not a software developer. Generally, these are exempt positions. Ask your HR if your position is exempt or not.
posted by MtDewd at 1:42 PM on May 16

If it is worth that much it is obviously worth a few hundred to sit down with an an employment lawyer to discuss the matter. At the very least call the telephone number listed in the link you provided and ask about computer employees, what that means and which ones are exempt. If they can point you to specific statues or rules it might also help. In briefly looking at the minimum wage statutes and rules I didn't find reference to "computer workers." It could be a court case etc. If you don't get resolution from the department then seriously consider talking to an employment lawyer. If there are others similarly situated in your job who are also interested in investigating this issue perhaps you can split the legal fees, at least on initial consult.
posted by caddis at 1:45 PM on May 16

You should check out the National Employment Lawyers Association website and do a search for an employment lawyer in your area. They would most likely meet with you for free; generally they operate by receiving a percentage of your reward if they take the case. Overtime pay is a pretty wonky area in US law these days due to the fact that it was created during a drastically different economic period (ie the Great Depression). I've seen a few cases where computer programmers have been winning overtime claims.

The focus is going to be on whether or not you are misclassified as an exempt worker. In other words, should you really be salaried? If the answer is yes, no OT. If the answer is no, you get the overtime pay you should have been receiving all along, within a specific statute of limitations.
posted by ictow at 1:55 PM on May 16

It's not completely on topic, but some companies pay overtime pay in some circumstances, as a means of creating an incentive. I worked for a company once which authorized us to work up to 20 hours a week overtime with pay for a particular project they wanted done faster rather than slower. So, overtime pay is not always out, though it has to be authorized by the employer.
posted by vilcxjo_BLANKA at 2:01 PM on May 16

For some more reference, I work in NYC, and I don't get overtime but get comp time, so if I'm on a call for 3 hours in the evening or whenever, my employer will let me take off 3 hours some other day. My friends' employer in NJ (a certain large media company) lost a lawsuit concerning not paying overtime, and instead of cash they gave him a vacation in Puerto Rico.
posted by Mach5 at 3:31 PM on May 16

Software developers are almost always exempt.

An employer may, like vilxjo_BLANKA said, have an OT policy of its own - mine will pay my 'hourly rate' (what it would be, were I not salaried) for any time past 20% beyond a normal 40 hour workweek, provided I've gotten clearance from my boss to do so. But that's entirely a company choice, not something imposed by law.

You say you're "not a professional." Care to clarify this? Generally, software developers are considered to in fact be engaged in "a bona fide professional capacity."
posted by Tomorrowful at 3:33 PM on May 16

Remember that the overtime laws are about who MUST be paid overtime, not who MAY be paid overtime. There is no law that I've ever heard of that says anyone cannot be paid overtime.

But the time to have had this conversation was when you took the job and were negotiating your compensation package.

My interpretation of the computer employee exemption thing is that if you truly an end of the chain employee, like a code monkey or a hardware installer, you are not exempt. But if you are running projects and possibly have any sort of supervisory capacity over the code monkeys, you probably are exempt.

My experience with the matter is that the key phrase is the bit about autonomy and decision making and the creative process. If you don't do any of those things, you probably aren't exempt.
posted by gjc at 7:08 PM on May 16