Per the California Department of Industrial Relations, a “computer software employee” who is paid hourly is exempt from collecting overtime under the Professional Exemption of the law only if all of the following are true:
- The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment.
- The employee is primarily engaged 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 functional 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.
- 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 shall not be determinative of the applicability of the exemption.
- The employee's hourly rate of pay is not less than $41.00 [the rate in effect on September 19, 2000]. The Division of Labor Statistics and Research shall adjust this pay rate 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. Click here for adjusted rate information (pdf).
Pay close attention, though. The state says that the exemption is not applicable to a computer software employee if any of the following criteria apply to his or her situation:
- 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.
- 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.
- The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.
- 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.
- 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.
- The employee is engaged in any of the activities set forth in nos. 1 through 4 above for the purpose of creating imagery for effect used in the motion picture, television, or theatrical industry.
Are You a Misclassified California Employee? You May Be Owed Back Overtime Pay
Our California employment law experts at Fernandez & Lauby LLP may be able to help you claim back overtime wages that you are owed. Our attorneys are offering a free review of your compensation schedule to determine if you are currently classified and being paid properly under California law.
Contact Fernandez & Lauby LLP for a no-cost consultation and our lawyers will fight for your legal rights as an employee. You can reach us online or call our toll free phone number at 888-959-8508.