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Subject:Re: Exempt status for Tech Writers From:"Downing, David" <david -dot- downing -at- fiserv -dot- com> To:<techwr-l -at- lists -dot- techwr-l -dot- com> Date:Wed, 25 Feb 2009 12:13:33 -0600
From: "Gene Kim-Eng" <techwr -at- genek -dot- com>
Subject: Re: Exempt status for Tech Writers
The law is a little fuzzy on this, but my own view is yes,
if hours in-office is a substantial portion of the criteria
on which an employee's performance is judged then
that employee has a pretty good claim that he or she
is in fact hourly and entitled to OT pay, because the
compensating considerations that are characteristic
of "exempt professional" employment are not being
received. OTOH, if time not spent in-office during
normal business hours results in work-related short-
comings, such as missing important meetings or
team members not being able to find the employee
when needed, being in the office more and at certain
specific times could legitimately be made part of an
employee improvement plan.
In both of the instances you describe, if the salaried
employees filed OT claims based on their being
treated as hourly workers despite their official hire
classification, I think the employers should be toast
under either FLSA or most state employment laws.
Gene Kim-Eng
------------------------------------
Seems to me that the situation itself is a bit fuzzy when we're talking about an employee who works for a company on an ongoing basis, as opposed to a contractor who gets hired to produce a specific item.
If I understand the definition of "salary" correctly, it's an agreed-upon amount of money that someone gets paid to produce a specific artifact or perform a specific act, regardless of how long it takes. If Julia Roberts agrees to accept a salary of $1 million to make a specific movie, she gets paid the $1 million for that movie, whether it takes five days or five months to make. (Okay, she could probably demand more and get it, but that's beside the point.) Likewise, if a contracted technical writer agrees to a salary of $5000 to produce the manual for a particular piece of software, he/she gets paid that $5000 whether it takes two days or two months.
In contrast, hourly jobs involve performing a task that's ongoing and getting paid according to how long you do it -- serving drinks, washing dishes, driving a bus.
The technical writer who works as an employee for a company on an ongoing basis is caught somewhere in between. On the one hand, he/she is producing specific artifacts, but on the other hand, he/she is performing an ongoing task. You can argue that if such and such a document has to be completed by a certain date, that's part of what the writer can be required to deliver for the agreed upon salary, even if it takes longer than a 40-hour work week. On the other hand, you can argue that the writer is being paid to work only 49 hours/week, or that if the production of manuals is an ongoing task for that writer, the writer should be paid hourly for all the time spent on task.
I remember another situation I got into twice that further complicated matters -- a situation that maybe some of you have gotten into as well. I had to stay late to finish a job because I was required to take time out from the writing to attend training that I didn't choose to attend. In one case, it was windows training that I really didn't need, and I asked my manager if I could bow out, and he insisted I go. In the other case, it was something company-wide, but it was one of those touchy-feely let's-all-learn-to-get-along-better things that we really didn't need. So is it fair to have to stay overtime in that situation.
David Downing
Senior Technical Writer
Credit Union Solutions
Fiserv
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