The California Computer Professional Exemption

Under California law and Wage Orders, a “computer professional” is exempt from overtime compensation if he or she is “highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering.”

In addition, he or she must be primarily engaged (51%-plus of the time) in:

• work that is intellectual or creative, requiring exercise of discretion and independent judgment; and
• performing one or more of these duties:

1. Application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
2. The 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; and/or
3. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

Exercise of “discretion and independent judgment” means entrusted with comparison and evaluation of possible courses of conduct relative to his duties and with the authority to make an independent choice among the alternatives, free of immediate supervision. Someone who mostly follows specified “paint by numbers” procedures does not qualify for the exemption.

The California computer professionals’ exemption has no requirement for any particular academic degree and there is no licensure or certification requirement. Furthermore, job titles are not determinative of the applicability of this exemption.

There are several types of computer workers who are not eligible for the exemption:

• trainees and workers at entry-level positions;
• employees not skilled enough to work independently and without close supervision;
• employees engaged to operate, manufacture, repair or maintain hardware;
• engineers, drafters and machinists using computer-aided design software, including CAD/CAM, but not in a systems analysis, programming or any other similarly skilled computer-related occupation;
• writers creating box labels, product descriptions, setup and installation instructions, or content material to be read by customers or subscribers or visitors to computer-related media (including the internet or CD-ROM); or
• employees creating imagery for effects in the movie, television or theatrical industry.

Effective on September 30, 2008, amended Labor Code Section 515.5 extended the exemption to salaried employees whose annual and monthly salaries are not less than statutorily specified rates, which the California Division of Labor Statistics and Research (DLSR) is responsible for adjusting every October 1^st of every year, effective January 1^st the following year (online at http://www.dir.ca.gov/DLSR/statistics_Research.html).

During 2009, the minimum monthly salary for the exemption for 2009 is $6,587.50 and the minimum annual salary is $79,050.00. DLSR states it should issue the 2010 minimum monthly and annual salaries for the computer professional exemption in the next one or two weeks.

If you have any questions, please contact me or any of our other employment law attorneys. Best, Bob Edwards