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October 2008
California Overtime Pay Laws For California Computer Professionals, Programmers and Software Engineers
Prepared By: Melissa C. Marsh, Los Angeles Employment Attorney
Update: For 2009, to be exempt from California's overtime laws under the computer professional overtime exemption codified in Labor Code §515.5, the computer professional must earn at least $79,050 annually ($6,587.50 monthly and $37.94 hourly) and still meet the duties requirements as set forth below.
Although many computer professionals and programmers are treated as salaried employees exempt from overtime, the fact is that not all computer professionals are exempt from overtime. Pursuant to California law, only certain highly compensated computer systems analysts, programmers and software engineers who satisfy both the minimum salary test ($36 per hour for 2008; $37.94 per hour for 2009) and the following criteria are exempt from overtime.
1. Job Duties. The computer professional must spend more than 50% of his or her time in work that is "intellectual or creative" and requires the exercise of discretion and independent judgment, and the computer professional's primary duties must consist of one or more of the following:
- systems analysis, including consulting with users, to determine hardware, software or system functional specifications; OR
- design, development, documentation, analysis, creation, or modification of computer systems or programs, including prototypes, based on and related to, user or system design specifications; OR
- documenting, testing, creating, or modifying the design of a computer software or hardware.
2. Skill Level/Compensation. The computer professional must be highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering. Additionally, the employee must earn at least $37.94 per hour or a salary of $79,050 per year (up from $75,000 in 2008). This compensation level will be adjusted each year based on the increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers.
3. Specific Exceptions. Employees in the following computer related jobs are NOT exempt from overtime under this Computer Professional Exemption:
- Trainees or entry-level employees;
- Employees in computer-related occupations lacking the expertise to work independently;
- Employees engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment;
- Engineers, drafters, machinists, or other professional employees whose work is highly dependent upon or facilitated by the use of computers and computer software programs and who are skilled in computer-aided design software, including CAD/CAM;
- Writers engaged in writing content material either for print or for onscreen media; and
- Computer professionals engaged in creating imagery for effects used in motion picture, television, or theatrical industries.
Conclusion.
In sum, the computer programmer overtime exemption codified in California Labor Code §515.5 may provide some overtime relief for employers of highly skilled and highly compensated computer professionals, but it is not a broad based exemption for high tech employees. California employers should also be aware that computer professionals who are properly classified as exempt from overtime (through job duties and hourly wage) are still entitled to the required meal and rest breaks.
Our employment law practice consists of: (1) assisting employees with their wage claims and (2) counseling employers who seek to comply with new state and federal employment laws, providing human resource training, and providing essential contracts and employee policies to prevent employee lawsuits. To schedule a consultation, please call 818-849-5206 or Send Us An Email.
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California employment lawyer, Melissa C. Marsh, is based in Sherman Oaks and West Hollywood, and serves individuals and businesses throughout Los Angeles County, including: West Hollywood, Miracle Mile, Beverly Hills, Century City, Santa Monica, Burbank, North Hollywood, Valley Village, Toluca Lake, Studio City, Sherman Oaks, Van Nuys, Encino, and Woodland Hills.
© 2008 Melissa C. Marsh. All Rights Reserved.
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