RE: Tech Writer Lawsuit

Subject: RE: Tech Writer Lawsuit
From: "Lauren" <lauren -at- writeco -dot- net>
To: "'Gene Kim-Eng'" <techwr -at- genek -dot- com>, "'TECHWR-L'" <techwr-l -at- lists -dot- techwr-l -dot- com>
Date: Sat, 17 May 2008 19:46:04 -0700

> From: Gene Kim-Eng

> 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,

Cite where the law says that. The glossary says that, but the law does not.
The law applies to both salary and hourly employees. This could be a
controversy, but how do you interpret the phrase, "or the annualized
full-time salary equivalent of that rate" if it doesn't mean salaried after
hourly was already specified?

> 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.

That would be true if the law limited itself to hourly employees, which it
does not. It was introduced to extend the exemption to hourly employees but
it also includes salaried employees in the computer software employee

> 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).

If they are categorized as "executive, administrative, and
professional employees" as defined in 515 or "computer software employees"
as defined in 515.5, except technical writers.

> 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.

That's true, but irrelevant for 515.5 which includes both hourly and salary

> Or, if she can establish herself as
> a writer in the software field

Slow down, Gene, I think you're making an assumption here. Section 515.5
defines the class of "computer software employee" who is exempt from OT
laws. This class specifically excludes "a writer engaged in writing
material,..." This indicates to me that the law does not recognize an
employee who is "a writer in the software field."

If Hoenemier is an employee in the computer software field, then she is
exempt. If she is a writer, then the exemption defined in 515.5 does not
apply to her. Her rate of pay, whether it is salary or hourly, does not
matter. As a writer, 515.5 does not apply.

> 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.

The article does not provide a lot of details for the case, but arguments
from each side and the text of the law is online. Hoenemier is suing for OT
because of the TW exception in 515.5 and OT laws are detailed in the law.
The article states that Sun is classifying Hoenemier as a "professional
employee" as defined in 515. Those two facts are enough to highlight the
controversy in the law. Hoenemier wants the OT exception for computer
software employees, but that section of the law, 515.5, doesn't apply to her
because she is a writer.

I think that Sun is correct that 515 applies and that 515.5 does not apply,
but I also think that 515 does not include duties that are consistent with
technical writing, unless Sun can prove that Hoenemier fit in the class of
"executive, administrative, and
professional employees, provided that the employee is primarily
engaged in the duties that meet the test of the exemption,
customarily and regularly exercises discretion and independent
judgment in performing those duties."



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Re: Tech Writer Lawsuit: From: Gene Kim-Eng

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