Wednesday, November 29, 2006

True or False: All computer help desk employees are exempt from receiving overtime (i.e., not entitled to overtime).


The U.S. Department of Labor recently ruled that certain help desk employees are entitled to overtime (if they work more than 40 hours in a week). These help desk employees' duties and the amount of time, in general, that they would spend on such duties are described below:

55%─Analyzes, troubleshoots, and resolves complex problems with business applications, networking, and hardware. Accurately documents all work in
appropriate problem tracking software. Prioritizes tasks based on service level agreement criteria with limited supervision.

20%─Installs, configures, and tests upgraded and new business computers and applications based upon user-defined requirements. Assists users in identifying
hardware/software needs and provides advice regarding current options, policies, and procedures. Creates and troubleshoots network accounts and other business application user accounts as documented in the employee lifecycle process.

10%─Participates in the design, testing, and deployment of client configurations throughout the organization. This process requires detailed knowledge of Microsoft operating systems and compatible business applications. Leverages application packaging software technology for deployment of business applications to client systems.

5%─Participates in the analysis and selection of new technology required for expanding computing needs throughout the organization. Works with competing vendors to determine the best selection based on price, technical functionality, durability, manufacturer support, manufacturer vision, and position in the healthcare industry.

5%─Documents technical processes and troubleshooting guidelines. Documents end-user frequently asked questions about computer systems or programs and publishes on Intranet as guidelines for the entire organization.

5%─Monitors automated alerts generated by systems management tools and makes decisions on the most effective resolution.

The U.S. Department of Labor ruled that these help desk employees did no fall within either the administrative or computer employee exemptions. Therefore, these employee are likely entitled to overtime pay when they work more than forty hours in a week.

Wednesday, November 22, 2006

My Employer Just Changed Me From Salaried to Hourly, What Should I do?

Overtime laws divide the workforce into two categories:

1. Salaried exempt employees not entitled to overtime; and
2. Hourly nonexempt employees entitled to overtime.

Which category are you in? It depends on what your job duties are. The U.S. Department of Labor's fair pay website does a good job of describing the type of duties that qualify an employee as exempt and not entitled to overtime.

What is an employer to do when it realizes it wrongly classified an employee as exempt and failed to pay overtime?

Usually, an employer will simply change the employee's classification, begin to track his or her hours worked, and start paying overtime.

But, what about the years that the employee has spent working in the wrong classification and losing out on overtime? That employee likely has a good claim against his or her employer for all of the back overtime worked over the past two or three years. That person should consider meeting with an attorney immediately to discuss his or her options. I say immediately because the statute of limitations in overtime cases run from each paycheck that should have included overtime, but did not. For an employee who was wrongly denied overtime for more than two years, the longer he or she waits to assert a claim, the fewer pay periods that the employee can challenge in Court.

Wednesday, November 15, 2006

Should I Stay or Should I Go? What to do when you are harassed at work.

Clients facing difficulties at work often ask me: "Should I just quit?" I often respond that there are two ways to look at the question.

1.The Legal Answer. Quitting will not usually help the employee who is considering taking legal action against his or her employer. It is better to consult an attorney, have that attorney file your claim, and endure while the legal process runs its course.

Quitting may cutoff any claim for back pay, unless your working conditions are so intolerable that you can prove a constructive discharge(discussed here)

Quitting may make it more difficult to collect unemployment benefits unless the employee can prove he or she quit for "good cause." Good cause is explained here at page 16.

Most anti-discrimination and wage and hour statutes have provisions that forbid employers from retaliating against an employee who complains in good faith that his or her employer is violating the law. As a result, an employee who make his or her complaint known to his or her employer has an added measure of legal protection. The United States Supreme Court recently addressed Title VII's anti-retaliation protections in the Burlington Northern case.

2.The Reality Check: If going to work is so bad that it is affecting your emotional health, you should consider quitting. You should weigh the potential legal advantages of sticking it out against the emotional toll of continuing to work at you current job. I often tell unhappy employees that ending your current employment relationship will not help your legal claim, but may be the best decision you ever make since it gives you the opportunity to find a better job.

Tuesday, November 07, 2006

Q: Are You Entitled to Severance? A: It depends.

No Maryland law guarantees an employee's right to severance. Unless an employer promises severance, there is nothing that requires an employer to offer it. However, there are three main ways an employee may obtain severance.

1. As part of an employment contract or severance plan. Some employees negotiate a severance at the outset of their employment. Severance is used as a carrot to entice the employee to accept a job offer. For example, an employer could agree to pay one week of severance for every year of employment. In such case, severance might constitute earned wages under the Maryland Wage Payment and Collection Law. This is important because the MWPCL provides an employee with the opportunity to file suit for earned but unpaid wages, treble damages and attorney's fees.

2. As part of a non compete agreement. Severance can be used to entice an employee to agree not to compete for a period after his or her employment terminates. The Maryland Court of Appeals has suggested that this type of severance is not earned and therefore not covered by the Maryland Wage Payment and Collection Law. (An employee could still recover unpaid severance, but would need to do so by alleging breach of contract.)

3. In exchange for a waiver of claims. When an individual's employment terminates, the employee and employer often want a clean break. They can accomplish this goal by entering into a settlement agreement. Often the employee agrees not to sue in exchange for severance.