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I'm a Software Engineer in California, and I am paid salary. As far as I can tell, legally, even while salaried, I would have to earn over 88K to be allowed to be exempt and not be paid overtime. (California Labor Code Section 515.5(a)(3)) https://www.dir.ca.gov/dlse/LC515-5.pdf and https://www.dir.ca.gov/oprl/ComputerSoftware.pdf

I'd like to bring this up to my boss, but I don't want to be retaliated against or make it seem like I'm bringing it up as a threat. I've worked a lot of overtime this week, and we're going to have to work overtime for a few more days to finish a project in time. I don't want it to come off negatively or threatenly, I just want to get paid for it. This is for a large corporation.

I have no clue if this was done on purpose, or maybe no one knows about this. Perhaps payroll still has the salary from a 5+ old year, where I am paid over and I would be exempt.

Does anyone have advice on how to best approach this situation?

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    Do you have an HR department? A simple "Can you help me understand why ..." is typically all it really takes and can help you avoid appearing adversarial for raising a potential issue. Your question is rather open-ended so are you specifically looking for advice on how to bring this up with your manager, or indeed, HR? – Lilienthal Jan 6 '17 at 19:41
  • I was intending to bring it up with my manager, but I could send an email to payroll perhaps. I don't have an HR department or payroll in the building I work at. – Kyle Jan 6 '17 at 21:48
  • So you're looking for answers with a script or pointers for how to bring this up with your boss without sounding adversarial? And for starters I highly recommend giving this US News post by Alison Green a read. – Lilienthal Jan 7 '17 at 11:39
  • It depends on your relationship with your boss on how to ask for something. If he's a money-grubbing-penny-pincher, there's no easy way to go about it. Hopefully, you can have a professional conversation. – user8365 Jan 7 '17 at 12:52
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    If you're salaried, I don't think that guidance applies. It will take a lawyer to say with certainty, but when I read the information from the CA DIR it seems like those requirements only apply to folks getting paid hourly. Salaried folks in every placed I've ever worked in the US are exempt from overtime. – ColleenV Jan 13 '17 at 15:09
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These documents you are referencing do not state ALL the criteria to determine exempt vs non-exempt. Rather than pull on us, why don't you ask your HR people HOW they made the determination for your position? It's within your right to ask and get a satisfactory answer. Ask THERE, because they will have information about your position that we do not.

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Sadly, there is no easy way for you to raise this issue without damaging your relationship with your boss or your reputation at the company unless (1) you have already established yourself as the hardest and most productive worker in the team such that you’re considered indispensable or (2) your boss loves you more than cake. The primary reason for this is that most of the people you deal with, will feel that you are asking a hostile or antagonistic question.

  1. Raising it with HR means you may be protected from hard retaliation, but it does not protect you from soft retaliation such as professional isolation, not being assigned to high-visibility projects, etc. Note that HR will contact your boss if you raise the issue.

  2. Raising it with your boss will very likely result in him or her losing some amount of trust in you. What most supervisors want on their team are employees who not only can do the work, but have a positive attitude about getting their work done. While unfair, you will very likely be viewed from then on as not having the right attitude about work—e.g., the guy willing to spend some extra time to help a project over the finish line.

Probably the most tactful way to go about this would be the following question:

I’m committed and excited to help the team get this project over the finish line. I just had a very small question: are we authorized for overtime to get this done?

In most industries/locations, this would be a perfectly normal question. But as I mentioned above, you are a software developer in CA and the culture there is much different (in the sense that CA companies already feel that they provide many non-salary perks to all of their employees, such as transportation benefits, catered meals, and the highest software developer payscale in the US and probably the world). In such a world view, your question will more likely than not (and fairly or unfairly) be viewed as, “Here is one more benefit that you are not providing me that I am entitled to.”

What might be more acceptable in CA would be something along the lines of:

I’m committed and excited to help the team get this project over the finish line. I just had a very small question: can we be reimbursed for overtime meals?

It's not much, but it changes the request from one regarding legal issues to one about company policy for reimbursement and its views towards reciprocity, which may be viewed as less hostile.


As @Patricia notes in coments below, the elephant in the room is the question of whether you have been classified correctly as exempt/non-exempt. That is a legal question, and you’re probably not going to be offered legal advice on this board. Regarding your exempt/non-exempt status: I would not assume that you understand your proper classification as that is a legal determination. If you feel strongly that you have been misclassified, speak to an attorney.

  • I don’t think that changes the way the CA company feels or how its managers/HR department will feel. – 2ps Jan 14 '17 at 4:31
  • Both those questions dodge the key point that needs to be resolved, the OP's exempt/non-exempt classification. There could be really bad implications for the employer if they do not handle non-exempt employee overtime correctly. – Patricia Shanahan Jan 14 '17 at 15:01
  • That presents a legal question that is outside the scope of this board. – 2ps Jan 14 '17 at 15:03
  • We can't say whether the OP is exempt or not. It might be helpful to suggest a procedure the OP should follow to get the issue resolved. – Patricia Shanahan Jan 14 '17 at 15:07
  • I am sure the OP would welcome your providing an answer offering the procedure that one follows in California to get misclassification issues resolved. – 2ps Jan 14 '17 at 15:11
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Going to HR for any reason is rarely a good idea, unless it's with questions about benefits or other things where your boss would refer you to HR himself. Never mind what you've heard. There's a good chance your boss will consider it to be complaining about him to a different department. If you just want information there are other ways to get it. Seeing a lawyer to make sure you're on solid ground is one way.

Is there some reason why you can't just enter your overtime on your weekly time report? If questioned, act like you had no idea it might be an issue. You assumed the company was concerned about the rules and penalties, like every other California company.

Lastly, you should work some small amount of overtime all the time. Unless you have a bus or carpool to catch, don't rush out the door at the end of your shift, it's very unprofessional.

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    I don't think leaving on time on a regular basis is unprofessional. As long as the work is getting done when needed its irrelevant if you put in extra hours or not. – Mister Positive Jan 13 '17 at 14:42
  • It's unprofessional in the sense that a professional - engineer or programmer, for example - normally doesn't work on tasks that can be interrupted the very instant the minute hand reaches 12. You're not on an assembly line. Also, I wasn't thinking extra hours. By "small amount" I meant a few minutes. – stretch Feb 21 '17 at 19:09

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