Recently I published a list of common exemptions under California law. This list of exemptions did not delve into the details of each exemption in detail, so I will be returning to a few of the exemptions to add more explanation about each exempt classification. I’m currently reading Paul Graham’s Hackers and Painters, Big Ideas From the Computer Age. Therefore, this post turns to the computer professional exemption. In order for any computer professional to be properly classified as exempt from overtime pay under California law, employers should know the following five requirements:
1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion of independent judgment, and the employee is primarily engaged in duties that consist of one or more of the following: a. The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications. b. 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. c. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
2) The employee must perform the high-level work set forth in item #1 more than 50% of their work time. “Primarily engaged” means that more than 50% of the employee’s work time to be spent on those types of duties.
3) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title is not determinative of whether or not the position is exempt or not, and like every other exempt classification a determination must be made only on the types of duties the employee is supposed to be performing.
4) The employee is paid a wage that meets a certain minimum level that is adjusted each year. For 2015, the amount is set at $41.27 per hour or an annual salary of not less than $85,981.40 for full time employment, and not paid less than $7,165.12 per month. Therefore, in order to prove this exemption, an employer must maintain time and pay records to prove it has paid an employee at the level required by the law.
5) The exemption does not apply to certain types of computer workers. The computer professional exemption does not apply to individuals if any of the following apply:
- Trainees or entry-level employees. The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis programming, and software engineering.
- Cannot work independently. The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision.
- Work consists of repairing computer hardware. The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.
- Work is not computer systems analysis or programming. The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation.
- Work consists of developing user manuals. 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 on screen 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.
- Work consists of developing special effects. The employee is engaged in creating imagery for effects used in the motion picture, television, or theatrical industry.
Photo courtesy of Andrew Hart