March 10, 2013 at 10:14 pm
I am hourly-paid employee of a consulting company, but work all the time at client site. Sometimes I have to work overtime, even at weekends, sometimes my manager or teammates call me at home to do various work, so I connect remotely from home. It's all OK.
But recently manager told me that I cannot put overtime hours in a timesheet. Of course I was displeased and decided for myself not to stay late hours and sometimes ignore emails and phone calls. I even turn off my cell phone for weekend.
After that manager had another conversation with me, that I am senoir DBA and must be available after normal business hours too. I politely reminded him that he prohibited me to put hours in a timesheet. He replied that many of our team members work late hours and weekends too. That's true. But they are employees. They receive bonuses, paid vacation, etc. They build their career at this place. But I (as well as other consultants) don't have all of that.
Simply said, I don't want to work for free. In all other aspects, it's good place and I like the work I do. The project is interesting, I learn new technologies and features, team environment is mostly good. The manager, aside from pay issue, is more or less reasonable guy. My rate is within market boundaries for my skills and experience; it's not too high and not too low. But as I said, I just don't want to work for free. Free hours actually make my rate low.
I talked to my manager from my employer company. I want to note that this is simply W2 payer, nothing more. He said that whatever hours they receive from client, that hours they pay me, according to my rate. He sounded reluctant to talk to client about overtime hours.
Had anybody had such situation? How do you handle it ?
March 10, 2013 at 11:23 pm
If you are an hourly employee, then if they expect you to work extra hours - they should expect to pay for it. It's a lot of difference between a salaried employee and an hourly employee.
Jason...AKA CirqueDeSQLeil
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March 12, 2013 at 5:33 am
Being that you are not a salaried employee, you cannot be expected to work for free. This is the sort of thing that should have been worked out in the contract prior to starting. What did the contract say?
If you're not willing to work for "free", then when your contract is up, you can leave or negotiate a new contract stipulating paid overtime.
Your in a tough spot but depending on how much "overtime" your working, you really could be taking a big hit.
Steve
March 12, 2013 at 7:18 am
How about suggesting your manager that, if no overtime taken into consideration, then a bigger hourly rate should be taken into account. Like a measure to balance somehow your real work effort with the official timesheet.
Also, something like "the consultant would have to be available to perform tasks when required, no less than X hours/week" would balance the situation, just by raising a bit (or more) the number of your working hours.
Anyhow, it seems that a new agreement should be reached ... and you should claim the balancing factor. For example, if you work like 30 hours/week and get paid for 28, I'd say you could live with that, but if get paid for 20, that might be a problem. You should prepare this kind of report, BEFORE talking to your manager.
March 12, 2013 at 11:20 am
Steve-3_5_7_9 (3/12/2013)
Being that you are not a salaried employee, you cannot be expected to work for free. This is the sort of thing that should have been worked out in the contract prior to starting. What did the contract say?If you're not willing to work for "free", then when your contract is up, you can leave or negotiate a new contract stipulating paid overtime.
Your in a tough spot but depending on how much "overtime" your working, you really could be taking a big hit.
Steve
The problem is that I don't have a contract. If if does exist, then it is between the client company and my employer. What I have is offer letter from my employer that stating my hourly rate but does not mention overtimes.
March 12, 2013 at 12:18 pm
SQL Guy 1 (3/12/2013)
Steve-3_5_7_9 (3/12/2013)
Being that you are not a salaried employee, you cannot be expected to work for free. This is the sort of thing that should have been worked out in the contract prior to starting. What did the contract say?If you're not willing to work for "free", then when your contract is up, you can leave or negotiate a new contract stipulating paid overtime.
Your in a tough spot but depending on how much "overtime" your working, you really could be taking a big hit.
Steve
The problem is that I don't have a contract. If if does exist, then it is between the client company and my employer. What I have is offer letter from my employer that stating my hourly rate but does not mention overtimes.
The hourly rate is likely applicable to all hours worked. The omission of the overtime rate does not change much. If they require you to work overtime, you have to mark the hours and report it. Requiring an hourly worker (in the states) to work overtime without pay can cause a legal nightmare for the employer.
The overall best answer really boils down to "Discuss the matter with your organizations HR department." The account manager is really not an appropriate person to discuss the matter with you. Once you have discussed it with your internal HR, then discuss it with the the manager who is contracting your services. You need to discuss it with HR to make sure you understand the labor laws and implications as they pertain to you in your area and your organization.
Jason...AKA CirqueDeSQLeil
_______________________________________________
I have given a name to my pain...MCM SQL Server, MVP
SQL RNNR
Posting Performance Based Questions - Gail Shaw[/url]
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March 12, 2013 at 12:27 pm
Ask the people at your consulting company to deal with it. Generally, consulting companies have a "no free work" policy that you and their clients must abide by. When you have a company that wants to treat you like a salaried employee by working you overtime for free, tell them they need to take that up with the consulting company because you can actually get fired for working for free. Sounds odd but, as you know, consulting is a whole 'nuther world where no one get's anything for free. I believe you'll find the "no unpaid overtime" time clause in the contract with the Client, as well.
--Jeff Moden
Change is inevitable... Change for the better is not.
March 12, 2013 at 1:47 pm
It's been about 6 years since I was a totally independent contractor, but I did that for more than 20 years. During those times if I was working for an extended time with a single company it was usually the company's own HR that would scream and howl if someone was asked to work "off-the-clock" who wasn't a salaried employee.
The laws are different state-to-state, but generally speaking a company (and you) are at risk of losing your independent contractor status in the eyes of the IRS. And what the IRS decides is really all that matters. Losing independent contractor status means in essence that the IRS deems you to have been a salaried employee of the company and thus the company is going to be hit with back taxes and late penalties for not paying your quarterlies, etc. It causes a real mess and likely will lead to termination.
I've seen the two sides of this both as a contractor and as an employee of a large accounting firm. I recommend that you do some research at IRS.gov and review the contractor rules. The IRS doesn't really care about contracts if their guidelines determine that you are really an "employee" even if you are working through a third-party. And in their eyes the employer setting your hours is one critical sign that you are not an "independent" contractor.
The ice is very thin beneath your feet so please get some professional advice (i.e., CPA or attorney specializing in labor law).
March 12, 2013 at 3:02 pm
If the client can't accept paying for the hours you work, then it's time to move on.
Just turn in your timesheet with the actual hours you work, and let the consulting company you work for deal with it.
March 12, 2013 at 4:48 pm
Michael Valentine Jones (3/12/2013)
If the client can't accept paying for the hours you work, then it's time to move on.Just turn in your timesheet with the actual hours you work, and let the consulting company you work for deal with it.
+1
Jason...AKA CirqueDeSQLeil
_______________________________________________
I have given a name to my pain...MCM SQL Server, MVP
SQL RNNR
Posting Performance Based Questions - Gail Shaw[/url]
Learn Extended Events
March 12, 2013 at 5:35 pm
I've been consulting for years, and every now and then this lovely little item pops up.
I ignore the 30 minute calls on the weekend if I don't have to login if I just have to help the DBA(s) figure out what went sideways as a developer.
However, I also make it very clear to prospective employers that I charge 1 hour for every 4 simply for being ON CALL, forget if they need to actually use me, then it's full rate, when I'm doing DBA work. It's not negotiable.
In a case like this, it's a simple binary option for the employer. My hours are on the timesheet. Pay them or I walk. We're not discussing it. Part of the reason I contract is because so many employers think tech workers don't need sleep nor weekends.
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March 13, 2013 at 12:09 pm
You didn't indicate where you are located, but if you don't report actual hours worked, you may be opening yourself, the consulting company you work for, and the client up to problems. If you don't get any good, reasonable answers from your company's HR folk (I know, I know...) then you might want to get in touch with a lawyer who deals with labor laws and can advise you what you can/should do.
March 13, 2013 at 6:11 pm
ACinKC (3/13/2013)
You didn't indicate where you are located, but if you don't report actual hours worked, you may be opening yourself, the consulting company you work for, and the client up to problems. If you don't get any good, reasonable answers from your company's HR folk (I know, I know...) then you might want to get in touch with a lawyer who deals with labor laws and can advise you what you can/should do.
I am located in NY and work in NY, and my formal employer is in PA.
July 21, 2013 at 5:16 pm
This issue may have more than meets the eye. Depending on the exact work that you do and the money you make, the company may be able to say you are an exempt employee. What your own company does may (or may not) have bearing, unless there is something explicit in the contract. See the CFR (code of federal regulation) section 541. It discusses the legal basis for exempting individuals from overtime, and are generally sctrict. You can search "CFR 541 DOL" where dol is the department of labor.
Your job likely falls under the "computer professional" and they can be exempt employee under the code (again depending on the majority or priority of your tasks and your salary).
If you feel you are entitled to overtime, always keep track of your hours on your own and contact the local labor board where you reside or where you did the work. One of those will have jurisdiction to review the matter.
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July 22, 2013 at 10:45 am
mmartin1 (7/21/2013)
This issue may have more than meets the eye. Depending on the exact work that you do and the money you make, the company may be able to say you are an exempt employee. What your own company does may (or may not) have bearing, unless there is something explicit in the contract. See the CFR (code of federal regulation) section 541. It discusses the legal basis for exempting individuals from overtime, and are generally sctrict. You can search "CFR 541 DOL" where dol is the department of labor.Your job likely falls under the "computer professional" and they can be exempt employee under the code (again depending on the majority or priority of your tasks and your salary).
If you feel you are entitled to overtime, always keep track of your hours on your own and contact the local labor board where you reside or where you did the work. One of those will have jurisdiction to review the matter.
The OP doesn't meet the very first requirement to be considered an exempt employee - he stated that he's "hourly-paid". As explained in 29 CFR Part 541, Subpart G, to be considered exempt from the minimum wage and overtime requirements, an employee must be compensated on a "salary basis", i.e., the employee receives a fixed amount per pay period that is not subject to reduction based on the quantity or quality of work. Plus, the salary must be at least $455 per week.
As for those of us "computer employees" paid a salary, well, we're just stuck working the long hours!
Jason Wolfkill
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