The Tech Writers’ Dilemma: Exempt Professional or Hourly Employee: The Sun Microsystems Case Settlement Leaves the Problem Unresolved

In May 2008, a Santa Clara County Superior Court judge made tech industry news when he issued an Order granting Sun Microsystems tech writer Dani Hoenemier’s motion to certify a class action lawsuit. (Hoenemier v. Sun Microsystems, Case No. 106CV-071531, Santa Clara County Superior Court) The claim at issue was that tech writers at Sun were working 60 hour weeks, without meal breaks and related benefits, in violation of California labor laws (Cal. Labor Code § 510).

Sun’s position, mirrored by most of the tech industry, was that tech writers were exempt professionals as employees in the computer software field, per Labor Code § 515.5. Further complicating the issue, many tech writers also supported the exempt characterization, desiring more autonomy in work hours, and the ability to telecommute. There was a concern on the part of these writers that they would lose valuable independence if they were deemed non-exempt hourly workers.

In granting the Order certifying the class, Judge Jack Komar cited California Labor Code § 515.5 as a section of the law which would need to be addressed in the litigation. While this section generally exempts computer software professionals from the overtime compensation laws, tech writers appear to fall into a non-exempt category, per subpart (B)(5) of the section, which provides:

b) The exemption provided in subdivision (a) does not apply to an
employee if any of the following apply:

(5) 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 World Wide Web or CD-ROMs.

A few weeks ago, on July 21st, Santa Clara County Judge Joseph Huber gave preliminary approval of a $5 million dollar settlement of the suit, resulting in an average $21,000 payout to the 152 tech writers listed as plaintiffs in the suit. A hearing is set for October 8th to grant final approval of the settlement. In the two years the suit was working its way through the legal system, a number of tech companies, including Oracle (which bought Sun in February for $7.4 billion), have changed their policies and are now paying overtime to tech writers.

While it seems clear to me that Section 515.5(B)(5) carves out tech writers from the exemption of software professionals from wage and hour rules, it remains an open question whether the settlement of this case, which leaves some uncertainty about the applicability of the Labor Code section, will serve as impetus for an industry-wide change of approach, or whether it will take a fully litigated case to deliver a definitive answer to this issue. A similar concern, whether software engineers are deemed employees or independent contractors, has bedeviled the industry for years.