I am employed as a production artist.

I am classified as an exempt employee, and as such am regularly asked to work overtime.

I have two questions:

1. Is it legal to classify me as exempt? The provision I see that comes the cloest to my occupation would be the creative / designer exemption, however nothing I do is creative, it is all computer work that requires little to no creativity.

2. As an exempt employee, if I work more than 40 hours in a week, is my employer obligated to make that time up to me in the form of PTO?

1. There is an artistic professional exemption, but if you don't do any creative work, then you won't fit in this exemption.

2. No

So if I don't do any creative work, or if the creative work I do constitutes I would say less than 2% of my job, is it illegal to classify me as exempt? Is there any situation under which they could classify me as exempt if I am not doing any creative work and I am not a manager?

http://www.dir.ca.gov/dlse/FAQ_OvertimeExemptions.htm

Those are the ways they can classify you as exempt. If you don't fit anywhere on that list, they have to pay you overtime.

I'm uncertain as to whether or not my job would qualify as exempt based on that list. I suppose it could be argued that since my work is incidental to or a necessary part of creative work that other people do, I could qualify as an exempt professional.

Out of curiosity, if I am exempt, don't I have certain rights as to the hours I work and sick time, etc.

1. For example, If I only worked 5 hours in a day due to a medical apointment that was authorized, should I get a full days pay for that day?

2. Also, is my employer allowed to specify exactly when I come and go each day if I am exempt?

The receptionist is incidental to and a necessary part of my work as an attorney, but she still isn't exempt - it's what you do, not what others use your work for.

1) yes
2) yes

Well, based on what I read then, I would have to say that I am illegally classified.

All of my work is done on a computer, would that mean I'm exempt?

Also, how would I go about mentioning to my employer that I am misclassified, and also, is there back pay for overtime worked in that situation? How would I go about asking for it, since it isn't really documented in any way?

No, there is no exemption for using a computer. I can't tell you how to ask for your back overtime -- that depends on your company, and whether you are willing to "rock the boat" or not.

But would they be legally obligated to pay it?

Yes, if they misclassified you, you are owed your back overtime. You can try and collect it on your own, or through the labor board, or with the help of an attorney. It is just difficult to do so while you still work there, because things get awkward.

BTW, the fact that all of your work is done on computer is not, in and of itself, enough to make you non-exempt. My foster brother is a graphic artist; everything he does is on computer, but he is most definitely exempt.

In terms of your exempt status, the Federal Regulations are directly on point in this issue. They provide that "This requirement generally is not met by a person who is employed as a copyist, as an "animator" of motion-picture cartoons, or as a retoucher of photographs, since such work is not properly described as creative in character."

From what you posted, it appears that your work is similar that that listed above and you would be non-exempt.

In order to be exempt as an artist, you must have broad lattitude in what you work on. The regulations state that "painters who at most are given the subject matter of their painting" are exempt. Thus, if you are given any more than just the subject matter of the painting, you are likely non-exempt.

Of course, that regulation was written well before computers, and computers would not affect one way or another whether you are exempt. If you are only given the subject matter of the work, it does not matter if you are told to paint it on the Sistine Chapel or produce it on your computer.

In California, the creative and original portion of your work must take up at least 50% of your time in order to be exempt. Under the federal regulations, it is not as strict, but only a couple hours a day would likely not suffice.

As such, you are likely non-exempt under the federal standard as well. This is important because you can get double damages under the federal law, but only single damages under California law.

Just as a clarification; I was not making any kind of judgement about whether the poster was exempt or non-exempt; simply stating that his work being all on computer is not the determining factor either way.

Don't want to confuse anyone! :D