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Let's try a scenario, and tell me what you think. This is my understanding of how this law works.
Let's say Writer A and Writer B are both contractors looking for work. Writer A lives in LA, B in Boston.
Monolith Company has branches in both cities, and is looking for contract writers to work on a big project. It hires both A and B, let's say through the same contracting agency -- could be different, doesn't matter, but let's say that both writers get the same rate and Monolith gets charged the same by one or both agencies.
Writer A and B are each prepared to put in 80 hours a week. For "ease of calculating" let's say the rate of pay is $100/hr. :)
Monolith doesn't want to pay any overtime, because they're paying a premium rate for these contractors. Writer B, through the agency, negotiates with Monolith that he (or she) will accept only regular pay for any overtime hours (over 40 hours per week or 8 hours per day). That means he can basically work as many hours a week as he physically can or wants to, and will make $100/hr for every hour worked. This stipulation (regular pay for any overtime hours) is written into the contract, at the request of Monolith. This is a legitimate arrangement per Massachusetts law. At 80 hours a week (that's a full week!) and $100/hr, Writer B can thus make $8k per week or over $400k per year, assuming the contract goes that long and supports that many hours per week. (And if Writer B can work even more than 80 hours a week, although that's pretty tough, he can keep making more.)
Writer A, because he (or she) lives in the state of California, has a different situation. According to California law, Monolith *must* pay Writer A time-and-a-half for any hours worked more than 8 in a single day or 40 in a single 7-day period (I think anything over 6 days is in fact double time, and anything over 12 hours in a single day is double time).
Because Monolith doesn't want to pay overtime rates, and doesn't *have* to in any of the 49 other states besides California, Monolith tells the agency that it wants it written into the contract that Writer A is *not* permitted to work any overtime hours -- no hours over 8 in a single day, and no hours over 40 in a single week (or 6 or 7 consecutive days, whatever it is).
So Writer A is capped at 40 hours, and cannot work long hours on any given day. So at only 40 hours a week (we don't want him dropping dead, right?) and $100/hr, Writer A can thus make "only" $4k per week or over $200k per year -- in short, Writer A can only make half of what Writer B makes under these circumstances, just because he lives in California and not any other state. Plus, Writer B benefits from Writer A's loss. Any work overflow due to Writer A's capped schedule can go to Writer B. So Writer B says "Bring it on!" and Writer A stands there with his wings clipped, prevented from helping himself, his family, or anyone else who depends on him (or her), and so once again California, in its infinite wisdom, stifles Writer A's ability to make a living, his initiative, his motivation to get ahead or to do well or break out of his box, however you want to look at it.
I mean, if *every* state had this law, that would be one thing. But if a large company is paying a big ticket for good work, and doesn't have the budget to favor one state over another, what do you think it's going to do? Writer A might even be lucky to get the assignment in the first place! It's conceivable that Monolith could say, to the agency, "You know what? Screw Writer A, and screw California. We need somebody who can work up to 80 hours a week, and won't charge us overtime. Get us somebody who has this flexibility."
These are the facts. The lawmakers in the Golden State either didn't factor these things in, or they had wonderful dreams that couldn't come true, or else they are the champion of minimum wage earners everywhere, but the scourge of ambitious professionals eager to work as hard as they can and make as much as they can.
Tell me why you think this is a good thing. Thanks.
Steve
On Friday, June 19, 2015 6:46 PM, Gene Kim-Eng wrote:
If your regular pay exceeds $82,000 (I'm rounding up here) AND you and your employer are both willing to assert that the work you do does NOT consist of repetitive, rote tasks and DOES require creativity, discretion and/or independent judgement, you can still be exempt under the 2008 California law.
In practice, anytime you work through a temp agency, you're going to get classified as non-exempt no matter what you and your employer/s assert, because working as a temp pretty much defines you as interchangeable commodity labor in the eyes of the state. But as long as you are full-time direct and make more than the threshold pay level, the biggest determinant in whether employers want to classify you as exempt or non-exempt is really going to be whether they really understand the law and whether someone who had your job before you raised a stink about not getting OT pay. Because they obviously don't WANT to have to pay you OT.
Gene Kim-Eng
On 6/19/2015 5:59 PM, Janoff, Steven wrote:
> Yes, have you found a legitimate exemption to that one?
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