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Hewlett-Packard the Latest to be Sued by Tech Workers in Overtime Pay Scam

Overtime pay for IT workers has been a hot topic for the last six years since the Department of Labor issued an opinion letter finding that help desk employees primarily engaged in remote help desk support or on-site desktop support, commonly known as “troubleshooting” professionals, perform nonexempt, overtime-eligible duties.  Since the DOL issued the opinion letter, many Courts have agreed with the reasoning; namely, that troubleshooting professionals perform tasks which are manual and repetitive, making them the modern equivalent of blue collar equipment repair professionals.   Since these early decisions, federal and state courts have clarified that other types of tech workers in IT fields are also eligible for overtime pay, including workers responsible for installing, maintaining, migrating and/or supporting computer software and hardware (commonly known as “IMAC” professionals, standing for “install, move, add, change”).  Recently, other categories of IT workers have similarly been found to be eligible for overtime pay, including systems administrators and network administrators who monitor and maintain networks and network servers, and even higher level senior systems analysts who reconfigure networks with very simple coding scripts but otherwise perform no substantive programming.

Generally speaking, if you are an IT professional and you aren’t “programming” in the traditional sense of the word, i.e. writing programs as opposed to “drafting scripts” to assist you with troubleshooting issues, you are likely eligible for overtime pay.  Based on my experience, most middle market and large corporations have an IT team which includes at least a handful of these nonexempt employees, and very few of them are 100% in compliance with the federal and state overtime pay laws.  Personally, practicing in New York City, I have brought more overtime class actions on behalf of the above mentioned categories of IT professionals than any over type of professional across any industry.  This is because employers of blue collar IT workers were caught off guard by the 2006 DOL opinion in a state of 0% compliance.   Rather than fix the problems immediately after the opinion letter was issued, which would require the non-compliant employers to admit to the FLSA classification errors and pay all back wages, these employers continued (or continue) their unlawful practices waiting until they are caught before making changes, at which point any payout they make to the IT employees in a settlement will be a fraction of the amount it would have cost them had they made the changes in 2006.

Since 2006, when help desk employees were the first to begin bringing these lawsuits in large numbers, the IMAC professionals have taken over pole position and are bringing these lawsuits in record numbers.  Starting in 2007 with a massive overtime lawsuit against IBM, IMAC workers have begun asserting their right to receive overtime pay and recover back wages.  The latest such lawsuit, filed just 10 days ago, seeks to certify a nationwide class of IMAC workers employed by Hewlett-Packard over the last 3 years under federal Fair Labor Standards Act as well as state law.  Now, do you think Hewlett-Packard – IBM’s chief competition for domestic market share in computer hardware products – was not aware of IBM’s prior overtime misclassification lawsuit or the 2006 DOL opinion letter?  It’s highly unlikely, and for this reason the plaintiffs in the HP suit intend to argue that HP’s acts were “willful” under the FLSA and subject to special “liquidated” damages.

If you fall into one of these categories of employees and you are not paid overtime wages, the first thing you should do is pull out a calculator and determine the amount you are owed.  In New York, you are entitled to overtime wages going back 6 years.  The results will likely surprise you – it’s usually not small change we’re talking about.  Since IT workers are often paid at a higher rate than the average non-IT equipment repairperson, their overtime rate of pay is similarly higher, as are the damages for a long-term pattern of not paying overtime wages.  I routinely receive calls from IT professionals who call me asking for a damages assessment, which I gladly provide as part of our firm’s practice of providing free consultations.  More often than not, for long-term employees, overtime damages meet or exceed a year’s compensation.  If you fall in this category, my recommendation is to immediately seek advice.  An employer’s knowing failure to pay overtime wages isn’t just “willful” as the FLSA suggest, it’s fraud.  Don’t let your employer get away with over a year’s worth of your income knowing that you are looking the other way.


Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.

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