Employees who are misclassified as exempt from overtime pay may be owed hundreds of thousands of dollars in unpaid wages.  At Kletter Law Firm, we assist employees in recovering these unpaid wages.

Certain California employees are entitled to extra pay when they work overtime, typically that is more than 8 hours per day or more than 40 hours per week.  This extra pay is called Overtime Premium Pay, and it is one and one-half times the regular rate of pay or two times the regular rate of pay, depending on the circumstances.  California employees fall into two classifications, "exempt" -- those exempt from receiving Overtime Premium Pay, and "non-exempt" -- those entitled to Overtime Premium Pay when they work overtime.

The default position is that employees are classified as "non-exempt" and entitled to Overtime Premium Pay, unless they fall into certain very limited exemptions.  One of the exemptions from Overtime Premium Pay is the computer Professionals exemption.  This exemption, like all exemptions from Overtime Premium Pay is narrowly construed, and it is the employers' burden to demonstrate that the employee is classified properly and fits within the Computer Professionals Exemption and that the employee is not entitled to Overtime Premium Pay.  Most IT employees are entitled to Overtime Premium Pay in California.

The test to determine if a computer professional meets the criteria to be classified as exempt under the Computer Professionals Exemption is set forth in California Labor Code § 515.5.  To be accurately classified as exempt pursuant to Computer Professionals Exemption, the computer professional must meet all four of these criteria:

1.    Earn $37.94 or more per hour or an annual salary of not less than $79,050
2.    Spend more than 50% of his or her time on work that is intellectual or creative and that requires the exercise of discretion and independent judgment;
3.    Spend more than 50% of their time on work that is either:

a. The application of systems analysis techniques and procedures, including consulting with users;
b. The design, development, documentation, analysis, testing, or modification of computer systems or programs related to user or system design specifications; or
c. The documentation, testing, creating, or modification of computer programs related to the design of software or hardware for operating systems;
d. Highly skilled and proficient in the theoretical and practical application of     highly specialized information to computer systems analysis, programming, or  software engineering.

Further, computer professionals are not exempt, even if they meet all four off the above criteria, if he or she is a writer engaged in writing material either for print or for onscreen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to  computer-related media such as on the internet or CD-ROMs.

It is important to note that a job title is not determinative of the classification as exempt or non-exempt, the test is a salary and duties test, as set forth above.  The most important case dealing with Computer Professionals' Exemption is Combs v. Skyriver Communications, Inc.  This case describes the duties that make IT professionals in California entitled to Overtime Premium Pay.

Kletter + Nguyen Law LLP - San Mateo
1900 S. Norfolk Street, Suite 350
San Mateo, CA 94403
Phone: 650.577.2336
415.434.3400