Tech Writer Lawsuit

Subject: Tech Writer Lawsuit
From: "Darcy Rumbold" <darcyrumbold -at- gmail -dot- com>
To: techwr-l -at- lists -dot- techwr-l -dot- com
Date: Fri, 23 May 2008 12:55:07 -0700

I am a newbie here, so bear with me.

I found the actual court filing for the class certification motion.

*
http://www.docstoc.com/docs/615507/Hoenemier-vs-Sun-Motion-for-Class-Certification
*
** <http://www.docstoc.com/search/hoenemier/>
I also checked out www.gotovertime.com which has useful explanations of the
California laws regarding exempting employees from overtime pay,
specifically http://www.gotovertime.com/computer_pro.html#pre_2006.

[CYA: This is not legal advise but mere personal conclusions after reading
the materials. I am not expressing an opinion so don't kill the
messenger ]... allright, without further ado ... This is my understanding of
the facts of the case:

The class action is for California only, for the time period 2002-2006.

The GotOverTime.com site shows that to be able to deny an employee overtime
pay under the bracket of "computer professional exempt" means compensating
employees $42.64 (2002) to 47.81 (2006) per hour worked. How you are paid,
hourly or salary is irrelevant. It is a simple formula of dividing an
employee's compensation by the actual hours worked (including any overtime).

So, in 2006, for 40/hr workweeks that would be a minimum
compensation of $99445 annually. This number is based on the actual hours
worked, so if the employee worked 45 hrs a week, in 2006, the company would
have to pay $111875.40 annually. This goes for programmers as well.

Incidently, the rate per hour worked was lowered to $36 per hour worked in
2008. Also, companies would have to clock the employees hours to deny
overtime under the computer professional exemption to make sure that
employees are not working an amount of hours that reduces their compensation
below the hourly rate required for the exemption.

But, regardless of whether an employee paid hourly or salary, or how much,
an employee cannot be denied overtime pay under the computer professional
exemption if the job duties can be described as "engaged in writing
material, including box labels, product descriptions, documentation,
promotional material, setup and installation instructions, and other similar
written information, either for print or for onscreen media or who writes or
provides content material intended to be read by customers, subscribers, or
visitors to computer-related media such as the World Wide Web or CD-Roms."
To be able to be denied overtime pay under the heading of the professional
exemption (different from "computer" professional exempt), the job duties
would have to require, among other things, a prolonged course of specialized
intellectual instruction. The professional exemption is more or less
reserved for jobs such as a doctor, whose job duties require a medical
degree, or a nurse, who must have a nursing degree, a lawyer who has a law
degree - those are the types of job duties that can be denied overtime pay
under the professional exemption. An employee cannot be denied overtime pay
under the professional exemption if the job duties require generalized
academic instruction, such as journalism, english, technical communication
or a mix thereof.

Thus the computer professional exemption nor the professional exemption
apply. Left is denying overtime pay under the heading of the administrative
exemption; which does not mean secretarial work, but the administering of
business policies, such as a CFO would do.

There is an article in the Daily Journal, "Technical Writers' Wage-and-Hour
Suit Against Sun Gets Class Status" by Craig Anderson, which has useful
information about the administrative exemption:

*"Sun is not claiming that technical writers are executives, but argues that
most of them qualify for an administrative exemption because, according to
Ortman, "they spend a majority of their time performing non-manual work that
is directly related to the general business operations of their employer or
their employer's customers."
Kaufmann argues that Sun's technical writers should not qualify for an
administrative or any other exemption. "Tech writers aren't setting business
policy," he said. "They are writing descriptions of products Sun sells in
the market.""
*

Hope this is helpful.
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