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(October, 2000)

On September 16, 2000, Governor Davis signed Senate Bill 88 ("SB 88"), which immediately establishes exemptions from California's overtime compensation requirements for a limited scope of computer and health care professionals. This article focuses on the computer professional. SB 88 does NOT exempt from overtime all computer programmers or information systems employees. The new exemption only covers certain highly compensated programmers or system designers. To qualify for the computer professional exemption, employees must satisfy the following criteria:

1. Job Duties. The employee must spend more than half of their time in work that is "intellectual or creative" and requires the exercise of discretion and independent judgment; and the employee's primary duties must consist of one or more of the following:

(a) systems analysis, including consulting with users, to determine hardware, software or system functional specifications;
(b) 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
(c) documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

2. Skill Level/Compensation. The employee must be highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. Additionally, the employee must earn at least $41.00 per hour (a full time salary of $85,280 per year). This compensation level will be adjusted each year based upon the increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers.

3. Specific Exceptions. Under SB88, employees in the following jobs will NOT qualify for this exemption:

(a) Trainees or entry-level employees;
(b) Employees in computer-related occupations lacking the expertise to work independently;
(c) Employees engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment;
(d) 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;
(e) Writers engaged in writing content material either for print or for onscreen media; and
(f) Computer professionals engaged in creating imagery for effects used in motion picture, television, or theatrical industries.

In sum, this new computer professional exemption -- much like the federal standard after which it is patterned -- may provide some overtime relief for employers with highly skilled and highly compensated computer professionals, but it is not a broad based exemption for high tech employees.

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DISCLAIMER: This article has been prepared by Melissa C. Marsh for the benefit of clients and friends. Although prepared by a professional, this article should not be used as a substitute for legal advice because your specific factual circumstances may differ, the laws of your jurisdiction may differ, your specific situation may require different advice, or the laws may have changed. Readers should not act upon the information contained in this article without first seeking the advice of a local licensed and practicing attorney.

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