Exempt classifications only work if all of the tests are passed, and clearly in the OPs question clearly the payment basis test has failed. The question that I am asking, is whether or not the employee could be eligible for one of the other white collar exceptions. I keep re-reading the CLC 515.5 rules and I cannot seem to find the rule that says an employee who fails the 515.5 is not eligible for any of the other white collar exceptions. Perhaps BSPCPA can show me where it actually says this? Thank you.

I know the question wasn't for me, but I thought I'd look at it anyways. and I agree with BSPCPA's interpretation on the prior thread, but your question regarding other exceptions DAW makes sense.

I found on this page:

http://www.dir.ca.gov/iwc/wageorderindustriesprior.htm

a document under the following:

"statement to the basis" for wage orders 1-3,15,17 on 1/1/2001
http://www.dir.ca.gov/iwc/statementbasis.htm

Here is a quote from the document

Sections 3-12 of IWC Wage Orders 1-13 and 15, and Sections 4 and 5 of the Interim Wage Order will not apply to employees in computer software fields who 1) earn forty-one dollars ($41.00) or more per hour, 2) are primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment, and 3) are highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering within the meaning of added Labor Code S: 515.5. In addition, effective January 1, 2001, the IWC's orders will not apply to any individual participating in a National Service Program, such as AmeriCorps, AmeriCorps NCCC, and Senior Corps, that carry out services with the assistance of grants from the Corporation for National and Community Service within the meaning of Title 42, United States Code, Section 12571. (See Stats. 2000, ch. 365, amending Labor Code S: 1171.)

In this case $41 was the hourly rate at the time the document was produced as determined by the IWC for computer professionals. It seems as though the intent was to exclude computer professionals from sections 3-12 of those wage orders if they didn't meet the similar hourly page requirement to the "computer professional" exemption as discussed earlier.


Also, Section 1 (A)(3)(i)(iv) of the wage orders for 2006

(iv) The employee's hourly rate of pay is not less than forty-seven dollars and eighty-one cents ($47.81). The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

This was one of 9 requirements the employee must meet in the wage orders and in this particular case he doesn't meet one assuming we use the same rules for calculating their hourly rate as was done for CLC 515.5, thus the employee still wouldn't be exempt.

I hope what I said makes sense.

What you said makes sense, but it does not actually address my question. You are basically saying that per the Wage Orders that if the employee qualifies under the Computer Professional exception, then the Non-Exempt specific sections of the Wage Orders (3-12) do not apply. I would agree with that statement. I just do not see what (if anything) it has to do with my actual question. I am specifically asking that if the employee fails to pass the Computer Professional exception test, if the employee could then be considered for one of the other white collar exceptions.

I do not see how your answer addresses the question I asked.

Exempt classifications only work if all of the tests are passed, and clearly in the OPs question clearly the payment basis test has failed. The question that I am asking, is whether or not the employee could be eligible for one of the other white collar exceptions. ...

is whether or not the employee could be eligible for one of the other white collar exceptions. ...

No, he wouldn't be. The IWC Orders preempt the FLSA. If the employer isn't covered by one of the industry orders, then the employee is covered by one of the occupation orders. Since he is an otherwise qualifiying computer software worker, he is specifically covered by Order 17 vis a vis §515.5 which outline the only possible exemption for him.

As you know, what exemptions an employee could qualify for are determined first by the duties of the employee, not the pay decisions of the employer. In this case we have an employee that could qualify for either the computer science profession or one of the generic white collar exemptions. Where there are two competing laws, the one that affords the most protection to the employee is the one used, unless specifcally exempted. (e.g. the higher of state or federal min wage prevails).

If the employee fails the duties test of §515.5, THEN he could fall under one of the other exemptions.

Quite frankly, the your interpretation is baffling. Why would the state adopt a worker protection that can avoided by mere whim?

DAW: The question that I am asking, is whether or not the employee could be eligible for one of the other white collar exceptions.

To the extent that an employer wants to treat a a salaried employee as exempt, the employer has a number of safehavens, as detailed on the DLSE website http://www.dir.ca.gov/dlse/faq_OvertimeExemptions.htm. If a salaried employee fits within the scope of one of the listed exemptions, no overtime is due. It is as simple as that, and I suspect you know that already.

Notwithstanding the foregoing, I think of LC 515.5 as an overriding "trump card." If you are a qualified software employee a.) performing the duties set forth in LC 515.5 and b.) paid on a salaried basis, then you must be paid the equivalent of no less than $36.00 for each and every hour worked.

I had the following email exchange with the DLSE yesterday.

1. If using the Computer Professional exempt classification, is it required that the employer pay on an hourly basis? If not, does the minimum salary for exempt employees of $640 per week still apply? Or does the employee's guaranteed salary under this classification need to be the annual equivalent of the stated hourly rate for hourly-paid computer professionals exempt under this statute/IWC?



Response: The computer software employee exemption found in Labor Code § 515.5 is specific and distinctly different from the professional exemption; it is a specific exemption to the overtime obligation(s) if the criteria of the exemption is met (in full). That mandates an hourly rate of pay for all hours worked; payment by salary precludes application of this specific exemption.



2. Is there any reason the Administrative exemption could not apply to employees also meeting the criteria for Computer Professionals? If the employer felt comfortable that the employee met the criteria for the Administrative exemption, and paid the employer at least $640/week, would that be in compliance with the law, even though the employee also met the duties criteria in the Computer Professional exempt classification?



Response: The administrative exemption only applies if the individual is paid a salary (that meets the salary test – twice the minimum wage, based on full time employment; currently $31,200 annually). The computer software employee exemption only applies if the employee is paid hourly at the rate mandated by Labor Code § 515.5. Only one can possibly apply. Remember that in order to meet the criteria for the administrative exemption, more than 50% of the employees total hours of work would have to be devoted to administrative functions that meet the definition. If an otherwise bona fide exempt (administrative exemption) performs some line work functions similar to that of a computer software employee, that alone does not violate the exemption; at issue would be what duties the individual actually performs “primarily” (defined as more than 50% of all hours worked).