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Are computer programmers and other high-tech workers exempt from overtime?

Overview

Some technology companies pay their computer programmers and other I.T. professionals a salary without realizing some of these employees are entitled to overtime.

In California, the Computer Professional overtime exemption (Labor Code Section 515.5) determines which employees are exempt from receiving overtime pay. This law states to be exempt from overtime, computer professionals must be paid a minimum salary, AND have advanced job duties.

Salary Requirements

Computer professionals must be paid a minimum salary to be exempt from overtime. This changes every year and is updated October 1st. Even if you earn more than these minimum amounts, you may still be entitled to overtime pay depending on your exact job duties.

Minimum Salary Requirement

Year Hourly Annual
2017 $42.35 $88,231.36
2016 $41.85 $87,185.14
2015 $41.27 $85,981.40
2014 $40.38 $84,130.53
2013 $39.90 $83,132.93

If you were paid under the minimum rate for programming work any time in the last four years, you might be eligible to recover unpaid overtime, no matter what your job duties were.

Duties Test

Even if you make more than the minimum salary, to be exempt from overtime under California law, a computer professional must have job duties that meet several requirements. These requirements are not all black-and-white, but open to interpretation. If you have any doubt, it is best to consult an experienced employment attorney. To be exempt from overtime, your job must meet ALL of the following:

1. Your duties must require “discretion and independent judgment.” California courts generally hold this to mean that the employee must have independent authority to make decisions. If you spend a majority of your time doing programming that is based on detailed instructions provided to you by others, you may be entitled to overtime.

AND

2. You must be “highly skilled” and “proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering.” There is no educational requirement to meet this portion of the test; it merely means that the employee has achieved a high level of learning (either on the job or in school). Trainees and entry-level personnel are specifically not exempt from overtime.

AND

3. Your primary job duties (50% or more of their time) must involve at least one (or more) of the following:

(A) Applying systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;

(B) 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.

In other words, if you are a programmer, AND you make over the minimum salary above, AND you have control over most of the work you do, you may be exempt.

In Conclusion, you may be entitled to overtime for all hours worked over 8 in a day or 40 per week in California if:

• You are under the minimum salary;
• OR are a trainee or work in an entry level position;
• OR you spend most of your time executing instructions given to you by others;
• OR you mainly provide technical support and handle technical issues;
• OR most of your work is testing/debugging;
• OR your main task is software implementation.

This is not exhaustive and the laws are open to interpretation.

IT and Hardware Workers Are Entitled to Overtime Pay

Labor Code 515.5 specifically excludes employees working in IT and hardware maintenance fields. Employees who work on “the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment” are not exempt under the Computer Professional exemption. Therefore, most IT professionals who maintain networks, troubleshoot, configure desktop systems, install and repair routers, switches and various network devices are probably entitled to overtime. Also, employees who configure or maintain existing computer software will probably not be covered by the exemption.

Other exceptions – Trainees & Entry Level Employees, CAD/CAM, Writers, Creators of Digital Images or Special Effects

As noted above, the exemption does not apply to trainees, entry level employees and those employees who have not attained necessary skill and expertise to work independently and without close supervision.

For employees who work with computers, but are not programmers, software engineers or systems analysts, the law carves out additional exceptions. For example, engineers, drafters, machinists, or other professional who use computers and software such as computer aided design software (i.e. CAD/CAM), must be paid overtime.

Writers, technical writers, and similar positions are also entitled to overtime.

Employees who create digital images and special effects for movies, television, theater or entertainment are also entitled to overtime.

Contact McCormack & Erlich for free case evaluation

The laws governing which technology employees are exempt from overtime are very complex. If you are in any doubt as to whether you are exempt, it is best to consult an experienced employment attorney. The wage and overtime lawyers at McCormack and Erlich can determine if you are owed overtime and explain your options to recover any back wages you are owed. Call 888-465-5110 and mention this FAQ for a free consultation.

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