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Computer Software Professional Exemption
As of September 2000, California recognizes an hourly
computer professional exemption for certain employees in the computer software
field. A computer software field employee is exempt from overtime pay if
all of the following requirements are met:
- The employee is primarily engaged in work that is intellectual or
creative and that requires the exercise of discretion and independent
judgment; AND
- The employee is primarily engaged (spends more than half his or her
time) in duties that consist of one or more of the following:
- The application of systems analysis techniques and procedures
including consulting with users to determine hardware, software,
or system specifications.
- The design, development, documentation, analysis, creation, testing,
or modification of computer systems or programs, including prototypes,
based on and related to user or system design specifications.
- The documentation, testing, creation, or modification of computer
programs related to the design of software or hardware for computer
operating systems. AND
- The employee is highly skilled and proficient in the theoretical
and practical application of highly specialized information to computer
systems analysis, programming, and software engineering; (Job title
not determinative) AND
- The employee's hourly rate of pay is not less than $45.84 per hour
for every hour worked.
If the employer cannot show all of the above, the employee is non-exempt
and entitled to overtime pay and other benefits. Such employees can recover
wages going back three years (and in some cases four years) from the date
a complaint is filed, but only up to those wages earned since September
2000.
Under California law, the Computer Software Professional Exemption does
NOT apply to:
Trainees or entry-level employees who are learning to become proficient
in the theoretical and practical application of highly specialized information
to computer systems analysis, programming, and software engineering;
Employees in computer-related occupations who have not attained the skill
and expertise necessary to work independently and without close supervision;
Employees who are engaged in operation of computers or in the manufacture,
repair, or maintain of computer hardware and related equipment;
Engineers, drafters, machinists or other professionals whose work includes
the use of computers or computer software programs and who is skilled in
computer aided design software such as CAD/CAM but who are not in a computer
systems analysis or programming occupation;
Employees who write material related to computers for print or on-screen
media or who write or provide content for computer related media such as
the World Wide Web or CD-
ROMS;
Employees who create imagery for effects used in the motion picture, television,
or theatrical industry.
California Salaried Worker Overtime Exemptions:
Many computer professionals mistakenly believe that they are exempt from
overtime pay just because they are on a salary. Salaried computer and hi
tech employees/professionals may be exempt under California law ONLY
if they qualify under one of the traditional overtime exemptions: Administrative,
Executive and/or Professional.
In order to qualify under any one of these exemptions, the employee must
spend more than half their time engaged in exempt work duties, customarily
and regularly exercises discretion and independent judgment in performing
those duties, and earn a monthly salary equivalent to no less than two times
the state minimum wage for full-time employment, currently $2,340 per month.
(Two times the current minimum wage ($6.75) for full time work (40 hours/week)).
Overtime exemptions are narrowly construed against the employer asserting
them, and the ultimate burden of supporting the actual application of an
exemption rests with the employer.
Administrative Exemption
The administrative exemption applies to employees who perform work “directly
related to management policies or general business operations of the employer.”
The employee must spend more than half their time in job duties that involve
the following:
- regularly and directly assisting a proprietor, or an employee employed
in a bona fide executive or administrative capacity, or
- performing under only general supervision work along specialized
or technical lines requiring special training, experience, or knowledge,
or
- executing, under only general supervision, special assignments and
tasks.
Even if you meet this description, you are NOT exempt if you
are a “production employee” -- one who is primarily engaged
in producing either the product or the service that a particular company
exists to produce. In effect, “production” employees may not
be classified as exempt under the administrative exemption because they
are not performing work “directly related to management policies or
business operations of the company.”
Executive Exemption
In order to qualify under the executive or managerial exemption, the employee
must be involved in the management of the business. Therefore, salaried
computer and high tech employees are usually more likely to be mis-classified
under the administrative and professional exemptions.
A person employed in an executive capacity means any employee who spends
more than half their time in job duties that involve the following:
- the management of the enterprise in which he/she is employed or of
a customarily recognized department or subdivision thereof; and
- customarily and regularly directing the work of two or more other
employees therein; and
- having the authority to hire or fire other employees or whose suggestions
and
recommendations as to the hiring or firing and as to the advancement
and promotion or any other change of status of other employees will
be given particular weight
Professional Exemption
The professional exemption generally applies to a person who is certified
or licensed by the State of California and is primarily engaged in the practice
of a profession such as: law, medicine, dentistry, optometry, architecture,
engineering, teaching, or accounting; or who performs work which requires
knowledge of an advanced type in a field of science or learning customarily
acquired by a prolonged course of specialized intellectual instruction and
study, as distinguished from (i) a general academic education; (ii) an apprenticeship;
or (iii) training in the performance of routine mental, annual, or physical
processes or an artistic profession.
Guidance from the California Labor Commissioner suggests that in California
an advanced degree, above a B.A. or B.S., is necessary to meet the learned
profession exemption. Accordingly, it is unlikely that a significant number
of employees working in computer-related fields would qualify for the professional
exemption exception.
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Carter & Garay
A PROFESSIONAL LAW
CORPORATION
2030 Main Street Suite 1300
Irvine CA 92614
CALL: 888-THE LAW0
888-843-5290
B. (949) 260 - 9193
F. (949) 260 - 9194
info@cartergaraylaw.com |
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