Computer Professional Exemption
Although many computer programmers are paid on a salary and never receive overtime, the fact is that computer programmers must be paid overtime unless they meet one of the exemptions. If you spend more than 50% of your time on analysis and design of software, you might qualify for the Administrative Exemption. However, if you spend more than 50% of your time writing code, you will likely be entitled to overtime unless you meet the very strict requirements of the exemption discussed on this page.
I have added a page in which I evaluate various computer and technology job descriptions to determine whether those positions are entitled to overtime or not.
Effective January 1, 2008, the wage rate in order to qualify for the exemption was drastically reduced. This reduction was brought about by a new law that was passed in late 2007. The result is that many computer programmers in California lost their right to overtime pay for all work performed starting in 2008. However, even with the lower wage rate, you still must meet all the other requirements of the exemption or you need to be paid overtime.
You should also note that this law is specific to California. Most other states follow the Federal exemptions -- which generally cover most computer programmers. As such, the law for computer programmers in California is very different from other states.
Nothing in the foregoing discussion is meant to be legal advice and does not serve to establish an attorney-client relationship. Any statements, on this page or elsewhere, are not guarantees of any outcome.
In September of 2008, the California Legislature modified the Computer Professional Exemption. This time, they allowed a fixed salary of $75,000 per year to be paid no matter how many hours are worked. The salary is index to a measure of inflation and increases each year and the following table gives the required rates of pay for the exemption:
|Year||Hourly Rate||Annual Salary Equivalent|
As can be be seen below, the actual text of the law limits the exemption to individuals in the "software field." The exemption goes on to explain that individual engaged the "manufacture, repair, or maintenance of computer hardware and related equipment" is not covered the the Computer Professional Exemption. This means that any helpdesk position or "network administrator" will not be covered. If you spend the majority of you time installing, maintaining, or configuring computer hardware such as routers, switches, servers, desktops, laptops, or handheld devices, you are likely entitled to overtime pay, even if your salary is in excess of the amounts listed above.
In addition, simply configuring and maintaining existing computer software will also not be covered by this exemption because it is not "intellectual or creative." As such, maintaining a Microsoft Exchange Server, Active Directory, or being a Unix Administrator and handling such things as backups and recoveries, resetting passwords, setting user and directory permissions, and other routine maintenance tasks will not be covered by this exemption and you will likely be entitled to overtime pay, even if your salary is in excess of the amounts listed above.
The following it the text of the law. As you can see from reading it, not only is the minimum pay requirement difficult to meet, but you really must be a high level programmer.
California Labor Code §515.5
(a) Except as provided in subdivision (b), an employee in the computer software field shall be exempt from the requirement that an overtime rate of compensation be paid pursuant to Section 510 if all of the following apply:
(1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.
(2) 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.
(3) The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering. A job title shall not be determinative of the applicability of this exemption.
(4) The employee’s hourly rate of pay is not less than thirty-six dollars ($36.00) or, if the employee is paid on a salaried basis, the employee earns an annual salary of not less than seventy-five thousand dollars ($75,000) for full-time employment, which is paid at least once a month and in a monthly amount of not less than six thousand two hundred fifty dollars ($6,250). The department shall adjust both the hourly pay rate and the salary level described in this paragraph on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.
(b) The exemption provided in subdivision (a) does not apply to an employee if any of the following apply:
(1) 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.
(2) 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.
(3) The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.
(4) 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 engaged in computer systems analysis, programming, or any other similarly skilled computer-related occupation.
(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.
(6) The employee is engaged in any of the activities set forth in subdivision (a) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry.
If you spend more than 50% of of your time designing and writing code, and you make more than the required salary or hourly rate, you are probably exempt. On the other hand, if you primarily "code to spec" and follow detailed specifications provided by others, then you are probably entitled to overtime no matter how much you make. In addition, any type of hardware, "IT", or helpdesk work will be nonexempt.
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