Re: Tech Writer Lawsuit

Subject: Re: Tech Writer Lawsuit
From: "Gene Kim-Eng" <techwr -at- genek -dot- com>
To: "Lauren" <lauren -at- writeco -dot- net>, "'TECHWR-L'" <techwr-l -at- lists -dot- techwr-l -dot- com>
Date: Sat, 17 May 2008 14:44:27 -0700

This is the potential grey area I referred to before. As I read
this (again, keeping in mind that I am not a lawyer) the *entire*
section on hourly computer software employees applies *only*
to employees paid on an hourly basis, and the exceptions
that follow *only* apply to employees paid on an hourly basis
that the employer attempts to classify as exempt. For those
*not* paid on an hourly basis, *nothing* in the entire computer
employee section applies, including the exceptions, and the
exempt/nonexempt determination goes back to the executive/
administrative/professional rules.

Also, the entire section of the CA LC on exempt employees
eligible for OT specifically excludes employees who are
"highly compensated" ($100,000/yr or more).

Where things get grey is that the state will decide whether an
employee is paid on an hourly basis not by what the employer
says, but by how the employer treats the employee. If the
terms of your employment say "$xxx per month or year," and
the company requires you to record your hours and docks
you for taking an infrequent hour or two off or makes your
pay dependent on working a specific number of hours per
period on more than an occaisional basis, the state may
decide that regardless of what your employer says you are
being paid on an hourly basis.

So, if Sun regularly docked Hoenemeir's pay for working
fewer than 40 hours a week, or if her manager regularly
required her to work a specific number of hours per pay
period, it may be ruled that she was being paid on an
hourly basis regardless of what Sun claims and should
have been nonexempt. Or, if she can establish herself as
a writer in the software field who earned more than the
minimum threshold (which is $36/hr this year, but could
have been as high as $49 just last Dec) but less than
$100,000/yr, she may be able to establish that she was
eligibile for OT even though she was exempt (note
that Hoenemeir is claiming that she was nonexempt,
*not* that she was an exempt who was entitled to OT,
and Sun specifically cited the $100,000 figure as a
typical tech writer salary in their response, so I'm
guessing her annual pay was over $100,000 for at
least part of her time with Sun).

The case will most likely rest on whether the hours
Hoenemeir claims she was required to work were
imposed in such a manner as to constitute her being
paid on an hourly basis. There are not enough details
in the news article to conclude whether they do or not.

Gene Kim-Eng

----- Original Message -----
From: "Lauren" <lauren -at- writeco -dot- net>
> That was my original impression when I read the definition in the glossary.
> However, the law for computer software employees, LC 515.5 does not
> specifically restrict itself to "hourly" employees. Section 4 reads, "The
> employee's hourly rate of pay is not less than thirty-six dollars ($36.00),
> or the annualized full-time salary equivalent of that rate, provided that
> all other requirements of this section are met and that in each workweek the
> employee receives not less than thirty-six dollars ($36.00) per hour
> worked."
> What 515.5 does is include computer software employees, either paid hourly
> or on salary, in the professional exemption of 515, which is restricted to
> salaried employees and its definition does not include the type of work
> described in the computer software employee definition.
> I think the issue with technical writers in the law and in this case is that
> technical writers do not direct their own work in the sense described in the
> law. TWs receive orders for work, like "here is a project, now document
> it," but they do not control or direct the projects that require the work.
> So, although TWs may have some autonomy for how they do their jobs, they do
> not have autonomy for directing the scope, deliverables, and deadlines for
> their work. This puts TWs at a disadvantage, so the exception to the law in
> 515.5 should protect TWs. As TWs demand more autonomy and recognition for
> their contributions, companies may begin to see that TWs are placing
> themselves within the definition of professional employee, 515.
> So I still think the controversy is that Sun puts TWs in the definition of
> professional employees in 515 and Hoenemier, puts herself out of that
> definition and out of the extension to computer software employees in 515.5
> with the exception of 515.5.


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