Many employees in the computer software fields are
entitled to overtime pay under California law. These employees
work in "help desk", are "Systems Engineers",
have customer service positions or earn under $47.81 per hour (as
of January 1, 2006).
Computer software employees can be exempt from overtime pay if
they are paid hourly. If the computer software employee is paid
over $47.81 per hour as of January 1, 2006, then they can be properly
denied overtime. This hourly rate adjusts yearly, and the current
rate can be found on the California Division
of Labor Statistics and Research Website regarding Labor
Code section 515.5(A)(3) and
515.6(a). Sometimes employees place too much stock in the hourly
pay requirement. For those who work with computers and who make
over the exemption rate, they categorize those employees as exempt
even though they may not meet the criteria of the exemption. Usually
these employees are nonexempt and therefore are owed overtime pay.
The computer software employee's overtime pay exemption for is
phrased as follows. In a nutshell, it means that a computer software
employee must be engaged in actual programming and not repair or
manufacturing work:
"(h) Except, as provided in subparagraph (i), an employee
in the computer software field who is paid on an hourly basis shall
be exempt, if all of the following apply:
"(i) The employee is primarily engaged in work that is intellectual
or creative and that requires the exercise of discretion and independent
judgment.
"(ii) 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.
"(iii) 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 this exemption."
As noted above, this all applies to computer software employees "except
as provide in subparagraph (i)." This subparagraph creates
the following exceptions:
"(i) 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.
"(ii) 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.
"(iii) The employee is engaged in the operation of computers
or in the manufacture, repair, or maintenance of computer hardware
and related equipment.
"(iv) 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.
"(v) 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 on screen 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.
(vi) The employee is engaged in any of the activities set forth
in subparagraph (h) for the purpose of creating imagery for effects
used in the motion picture, television, or theatrical industry."
An instructive case is Martin v. Indiana Michigan Power Co. In
that case, the employee's job title was "IT Support Specialist." His
job duties included installing, upgrading and maintaining computer
workstations, installing hardware and cable for a LAN, and troubleshooting
employee requests. The employee had no computer certifications
and only a high school degree. The court said that this employee
was not an exempt computer software professional. The court emphasized
that this employee did not make decisions about how the network
should run but just maintained what was in place.
The other overtime exemptions could apply to employees not covered
by the computer software exemption. In other words, software professionals
could be exempt as administrative employees.
