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California OT excemptions California

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  • California OT excemptions California

    Hello -
    Whats the thought as to why computer professionals (I know not of all them) are exempt from OT? Its been a while since I have had an hourly contract gig, was salaried W2 for the last 7 years. I was kinda surprised to hear this 'exemption'.
    Thanks

  • #2
    At some point, federal and state legislatures have been lobbied to keep or change the exemption classifications over the years since the FLSA was originally signed into law to protect worker's wages. There isn't one single reason as to why IT professionals are exempt but a whole lot of mixed ones -- they meet duties and skilled knowledge tests and generally meet the minimum pay rates. And I suspect that the (larger) employers lobbied for the exemption.

    I can't put my fingers on when the Computer IT professional exemption came into play though...it's generally under the "Professional" exemption though.

    One thing to note....just because you fall under an exemption does not mean the employer must take advantage of that exemption. They could still pay you a lower hourly rate plus 1.5 times the hourly rate for any hours over 40 (and daily overtime if earned in CA) even if you meet the duties/knowledge tests.

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    • #3
      If by contract/hourly you mean you are no longer W2 but a 1099 independent contractor, overtime law wouldn't apply in the first place.

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      • #4
        California's Computer OT exemption was modified in 2008 to include employees engaged in computer systems analysis, programming, or software engineering. There are several requirements that must be met for the employee to be truly exempt. The largest requirement is that of pay which, as of January 1, 2017, will require a yearly salary of at least $88,231.36. In addition, the California exemption continues to have some minor variations from the federal exemption in the definition of exempt work. The California exemption requires that an exempt employee’s primary duty be intellectual or creative. Also, the California exemption varies the terms used to describe the type of exempt work so that all of the activities listed must relate to the “design” of particular software or hardware. That software or hardware must, under the California’s exemption, relate to “computer operating systems,” while under federal law, the activities must be related to the development of “machine operating systems.” The California exemption excludes a variety of individuals who are not accomplished computer professionals or who merely use computers. It excludes writers of consumer-oriented material, such as box labels, product descriptions, documentation, promotional material, start-up instructions, and similar written information either for use in print or other electronic media. The California exemption also excludes employees who are engaged in any otherwise-exempt computer activities for the purpose of creating imagery effects used in the motion picture, television or theatrical industries.
        J.E.B. Pickett
        Wynne Law Firm
        California Wage & Hour Class Action Attorneys.
        877-352-6400
        www.wynnelawfirm.com

        Disclaimer: This response and any materials or content provided by this response are for general informational purposes only and should not be relied on or considered as legal advice. Under no circumstances does this informational response, directly or indirectly, establish or intend to establish an Attorney-Client relationship.

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        • #5
          The FLSA was passed decades before computers were a thing, let alone an industry. Modifications have been made over the years to reflect the way pay and work actually functions. Prior these positions did not generally meet the requirements to be considered exempt, but these jobs paid a lot more than most non-exempt jobs.
          I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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          • #6
            If you look at the general Professional exception, it is not difficult to see how some computer professionals were claimed by their employers as Exempt. The Computer Professional exception just tries to formally set up rules spelling out which computer related professionals are Exempt. The process is similar to Doctors vs. Nurses, or Chefs versus Cooks. The key is that these later classes of employees are covered by Common Law (pre-FLSA) and computers were not covered by Common Law.
            "Reality is that which, when you stop believing in it, doesn't go away".
            Philip K. **** (1928-1982)

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