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. These other overtime pay issues are dealt with on the overtime
pay web page on my website.
