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Comment by revelation | Hacker News Reader

prohibiting off-the-clock work to all nonexempt employees

I presume this doesn't include computer professionals, which for some reason are exempt [1], as are sales staff on commission or, you know, farmworkers. Can someone explain why this insanity continues?

The original source for that exemption seems to be [2], an act from 1990

To eliminate "substantial documentary evidence" requirement for minimum wage determination for American Samoa

which also includes this provision. All I can figure from the history of this bill that can be found online is that in 1990 Idaho, senator James McClure decided to fuck over tech workers and sneaked that into a bill on American samoa (snooze). 25 years later and here we are not getting paid.

[1]: http://www.dol.gov/elaws/esa/flsa/screen75.asp

[2]: http://www.gpo.gov/fdsys/pkg/STATUTE-104/pdf/STATUTE-104-Pg2...

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It persists partially because tech industry workers are especially susceptible to class confusion. That is, the startup culture stock option lottery deludes them into thinking they are a part of the ownership class rather than the working class. Thus, they allow basically all of the fruits of their labor to be stolen from them.

That, and powerful lobbyists keep anything from changing.

Well put.

Steinbeck's "temporarily embarrassed millionaires" quote also comes to mind here. It has far more broad application than merely as a suggested explanation for the failure of socialism to take root in America. I find it is a very useful shorthand to describe a great many interactions between labor and ownership in this country, whatever the industry.

The tech industry is especially bad in that regard. It's not just the startup culture; it's more general than that. Many programmers have serious ego issues (as in, big egos and unjustifiable arrogance) and, in a somewhat amusing and baffling way, believe very strongly in the notion that the software industry is a meritocracy.

http://www.temporarilyembarrassedmillionaires.org/

Very well said. They take everything literally and accept management's account of all things uncritically, which makes it really easy to run divide-and-conquer games over them.

It also lowers their status (as I discussed here: http://michaelochurch.wordpress.com/2014/07/13/how-the-other...) because they out themselves as chumps when they take a shitty deal. If you make it clear that you'll let people take advantage of you, they never stop doing so.

On the other hand, those who show themselves to be politically astute are either tapped for executive roles or "culture fitted" (read: fired for their threat to the cult of cluelessness, although it's often dressed as performance-based). Which of those two outcomes one gets tends to happen for political, rather than "meritocratic" reasons, and can be hard to predict before the fact. So that's a risky avenue, too.

For some reason I find this topic fascinating, and at the same time I feel completely hopeless in navigating in any of it.

What do you think of The Gervais Principle?

http://www.ribbonfarm.com/2009/10/07/the-gervais-principle-o...

High Status = Sociopath, Low Status = Losers destined for Cluelessness?

Ha. michaelochurch almost literally wrote a book about the Gervais Principle, see his 26-part blog series on the topic: http://michaelochurch.wordpress.com/2013/08/06/gervais-macle...

And I don't think there are really any Losers destined for Cluelessness. The Clueless are the people who don't understand office politics, or think they can climb the career ladder simply by working hard and being loyal employees (not through strategic social climbing). Losers are people who understand and see the ladder there but choose not to be social climbers. They gossip, do crossword puzzles, punch out and go spend time with their kids. There are lots of Clueless destined to become Losers once they get burned out and realize what's up. Once you've learned that you can't unlearn it.

High status: Sociopath.

Low status people tend to divide into three camps: delusional, apathetic, and confrontational.

Low status, delusional: Clueless.

Low status, apathetic: Losers.

The confrontational ones either (a) learn how to play the game and become Sociopaths, (b) consciously develop apathy and learn how to slack and become losers, or (c) continue raging until they're expelled/fired from the organization.

There are a lot of comments like this in this thread, the gist of which being "people who don't demand overtime pay are deluded/stupid/victims of false consciousness/act against their own interest."

Pretty much everyone is an at will employee, free to go find another job. Since these exempt positions tend to be high skill, the logic behind these laws is that these kinds of employees don't need this extra layer of government protection between them and their paycheck. They have the wherewithal to go find another employer if they feel they're being treated unfairly.

The left wing side of this argument is certainly getting a hearing, but coming to a different conclusion doesn't make you a deluded member of the under class (if I'm interpreting your claptrap correctly).

You missed the point entirely and then went off on a rant about the "left wing" which is unsupported by any evidence or even coherent argument in your comment.

Implicit in your comment is an assumption that there is no information asymmetry and that power (real power--the social, political, and economic ability to actually assert oneself) is shared relatively equally between the owners of capital and laborers. I stopped being surprised that people actually believe such "claptrap" long ago, but am still amused by it.

The main point of the parent is this:

"people who don't demand overtime pay are deluded/stupid/victims of false consciousness/act against their own interest"

right? This is was I took him gnu8 to mean when he said "... the startup culture stock option lottery deludes them into thinking they are a part of the ownership class rather than the working class. Thus, they allow basically all of the fruits of their labor to be stolen from them." What other point am I missing?

I think my post and the follow up make a pretty coherent argument that no, in fact, mass delusion on the part of tech industry workers is not the best explanation. The delusion argument is an argument from the "left wing," especially when given in terms of capital and labor and conflict between classes and so forth. That's just a positive statement, not a normative one, so I don't understand how that can constitute a "rant."

What I think might be illuminating to Europeans who are incredulous about how our workers would allow the "fruits of their labor to be stolen," would be to hear why they might not consider working unpaid overtime to be being stolen from.

You understood my comment correctly. False consciousness is a good explanation because of the fact that tech workers accept such a meager proportion of the profits generated by their work without complaint. Why would anyone knowingly accept less money than they're worth? They wouldn't, knowingly. It must be unknowingly. They must not know they're being exploited because there is no significant organization. Instead they all act as "temporarily embarrassed millionaires" and try to increase their wealth incrementally, by competing amongst themselves for promotions and raises, working 100 hour weeks at startups for equity, and so on.

You suggest that they look elsewhere for a better deal, as if the free market price for their labor is by definition a fair price, but it is not, because of the power differential between capital and labor. It's not that all business collude consciously against labor(1), it's simply that the exception in the law for tech workers drives the price down, because it's purely good management not to pay any more than necessary for labor.

I'm not suggesting mass strikes, labor unions, and Marxist claptrap as a solution. Removing the loophole would be an entirely reasonable starting point. I've never seen anything approaching a rational justification for the tech worker exemption.

(1) Except when they do, like with the recent wage fixing scandal amongst a subset of well known companies.

>'They have the wherewithal to go find another employer if they feel they're being treated unfairly.'

That completely misses the point.

The parent is observing a behavior in the industry as a whole, not a specific employer.

Argue that the industry doesn't evidence this or argue that programmers should become plumbers, but boiling it down to 'go find another job' is nonsense in the context of an entire industry demonstrating the issue you mean to avoid.

I really don't understand the point you're trying to make here. The parent says that tech industry workers are "deluded" because they think of themselves as part of the "ownership class" rather than the "working class," thus allowing the "fruits of their labor" to be "stolen," so clearly he's talking about the behavior of individuals, albeit en masse. Because they're deluded, they're acting irrationally.

All I'm saying that given the job fluidity within the tech industry as a whole, it is unlikely that individuals are going to allow themselves to be compensated at rates very much less than the value they provide. Having the government force employers and employees to account for their work on an hourly basis, so that their labor is not "stolen," is a restriction on their respective individual freedom. So the other side to the parents argument is that maybe the tech industry as a whole is not deluded, maybe it just wants this freedom.

>'All I'm saying that given the job fluidity within the tech industry as a whole, it is unlikely that individuals are going to allow themselves to be compensated at rates very much less than the value they provide.'

The industry is not necessarily fluid [1] and more importantly any intra-industry fluidity there might be is irrelevant in the context of an entire industry demonstrating the issue you mean to avoid.

>'So the other side to the parents argument is that maybe the tech industry as a whole is not deluded, maybe it just wants this freedom.'

I'd hardly call that 'the other side'. A possibility, sure and if you personally feel that way, fine.

To suggest that the industry as a whole would or does consciously trade an considerable amount of pay for that 'freedom' is absurd.

Also, please stop selectively quoting the grandparent (neatly avoiding the predicating 'partially' of course) in these responses as if you didn't just sum up and summarily dismiss an entire side of this discussion with 'go find another job' in the intervening posts.

1: http://pando.com/2014/03/22/revealed-apple-and-googles-wage-... - Note: 1M people is a enormous number in relation to an industry the BLS sizes at ~4M, plenty large enough to be worth considering as capable of characterizing an entire industry.

You are free to go find another position that also will not pay you for overtime.

Or if you think that getting paid overtime is important, you are free to work in a field that pays overtime.

I am fairly certain that even if you include work outside of the 40 hours, my hourly rate is better than I would do otherwise.

On top of that, I can probably continue at this career for the next 35 years without a significant physical toll on my body.

If I thought otherwise, I would probably want to be an electrician; where if I owned my own business I still end up as an exempt employee.

The physical toll is there for many in this career but it's damage from a lack of physicality vs the damage from being over physical such as construction. Almost all of my family are pipefitters and I often envy them for doing something physical but it has also taken a toll on my father. They also get paid time and 1/2 and double time as required. They make about what I make in this industry but tend to work more paid hours to do it.

I understand you are taking the "free market" side of the argument but at a certain point employers hold too much power and employees start fight back. Things like that are why unions exist which are also a part of the free market.

That is insanity: http://www.dol.gov/whd/regs/compliance/fairpay/fs17e_compute...

The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in the primary duties test described above, are also not exempt under the computer employee exemption.

I worked at a major defense contractor as a mechanical engineer, and they worked really hard to make sure all of the engineers were classified as exempt. We filled out a questionnaire every year that was definitely crafted to proved that we were high level employees and therefore exempt. Yet they still paid OT anyway to avoid future liability, if you worked >45 hours a week, we got time and a half for every hour above 40. Considering most people worked ~50 hours a week, everyone collected OT every pay cycle. I actually funneled the OT off into a separate bank account for spending on vacation, it was that consistent.

Meanwhile OT for software engineers is seemingly non-existent for effectively the same job. I'd love to find out who got that loophole passed.

> OT for software engineers is seemingly non-existent for effectively the same job. I'd love to find out who got that loophole passed.

Recruiter lobby: http://andreas.com/faq-overtime.html

"The recruiters accepted our exemptions because they were going after bigger fish: the engineers. The computer engineers who work as W-2 contractors are generally earning $100-300/hr and often work 60-80 hours per week. The recruiters were afraid that if such workers were entitled to overtime pay, the companies may cut overtime work, and therefore the recruiters would lose their 30-50% share of that money (this can be much as $6,000 per week to a recruiter for a single worker.)

Engineers have always refused to organize or even to be aware of their interests: they think recruiters are their friends. One engineer said to me: "Engineers think they're so smart that no one could do such a thing to them. Wow. They got really screwed." The law is an annual loss of as much as $50-75,000 dollars per each engineer. Yep, it's legal. The recuiters wrote a law to take away their money. Silicon Valley engineers were plundered by their "friends"."

In California, computer professionals paid under ~$85k are required to be non-exempt (hourly) and should be paid overtime [1]

[1]: http://www.shrm.org/templatestools/hrqa/pages/california-min...

A cached link because it seems to be behind a login wall (wtf?):

http://webcache.googleusercontent.com/search?q=cache:XSpG9Y8...

EDIT: So there's this little gem in there:

> However, the above exemption does not apply to an employee if any of the following apply:

...

> The employee is a writer 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 Internet or CD-ROMs.

So if you're a frontend dev who isn't spoon-fed 100% of the copy you put up on the site, it's apparently illegal for you to be paid below $84k if you work more than 12 hours in a day without getting overtime? IANAL, but there's no other exemption for co-founders and other early employees, then I'd venture to say that 99% of startups have broken this law...

It keeps using the word "employee". How does this apply to contractors and consultants? Do they negotiate their own terms? Are high earning ones expected to be exempt like employees?

Contractors are not subject to labor laws.

However, if it is discovered that a "contractor" is an employee everywhere but on paper, then the employer can still be liable for labor law violations. IIRC part of the test is "Can they choose their own hours? Do they use their own tools or are they provided/maintained by the employer? Does the employer dictate how they must do their work, or only specify deliverables?"

Also not subject to federal pay withholding (for taxes). So its important to get it right.

Exempt and non-exempt are terms that only apply to employees. Contractors would generally be expected work work hourly (like non-exempt) or on a project basis (like exempt) depending on their negotiated contract. But in general I don't think that this kind of employment law applies to contractors.

I found the next clause in that sentence - "and their managers" to be interesting. Wouldn't the managers be exempt?

From that list, workers with disabilities are also exempt?

That's an exemption from the federal minimum wage (the "MW" next to it). It seems to be designed to encourage employers to hire disabled workers they might not otherwise employ, though I don't know whether it has positive effects in practice. It does have some provisions aimed at reducing abuse, such as requiring employers to first come up with an objective test of disability relative to the job in question (e.g. this person performs at 80% of the capacity of a typical non-disabled worker), then to determine the prevailing wage for non-disabled workers in similar jobs, and then to pay them no less than e.g. 0.8 x prevailing_wage, which can as a special exception to the minimum wage drop below the usual minimum-wage level.

PDF: http://www.dol.gov/whd/regs/compliance/whdfs39.pdf

Note that a bunch of the things on that list are exempt from that particular law because they are regulated specifically by a different law.

HR regulations, always fun!

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