Federal and state laws offer broad protections for employees. Generally, employees are entitled to minimum wage and overtime pay under the Federal Fair Labor Standards Act and the California Labor Code. There are several exceptions to these rules, which include several classes of exempt employees. California Labor Code 515.5 provides that computer software employees who meet a certain set of criteria are classified as exempt.
The Labor Code Looks at Job Duties and Pay
To quality as an exempt employee the Labor Code states that:
"(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."
Significantly, ALL of the aforementioned requirements must be met. In addition, in order to be exempt, the employee must make at least a minimum threshold salary, which is adjusted upward each year in accordance with numerous factors, such as the Consumer Price Index. These thresholds for 2017 include a minimum hourly pay of $42.39 per hour, or for salaried employees a minimum monthly salary of $7,359.88 and a minimum annual salary of $88,318.55.
Because the courts and public policy are protective of an employee rights, this exemption is narrowly read when applied to employees. In other words, if you do not meet all of the criteria above, you should not be classified as exempt. In addition, the exemption specifically does not apply if 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."
· "is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision."
· "is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment."
· "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."
· "is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information".
· is applying their duties to the creation of visual effects for theater, film, or television.
Moss Bollinger Stands Up For Employees
Classifying an employee as exempt is a big deal, as it deprives the employee of their right to earn overtime pay. If you believe that you have been wrongly classified as exempt, consult with an attorney. The Moss Bollinger law firm advocates for employees against unlawful employment action. We work on a contingency basis and charge no initial fees. This means we do not get paid unless you do. Call Moss Bollinger today at 800-249-1175 for a free consultation or complete our online form.