Nov 5

Decoding the Computer Professional Exemption

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California's computer professional exemption is very narrow.

California’s computer professional exemption is very narrow.

Computer professionals are exempt from California’s overtime laws. Unsurprisingly, many employers, whether high-tech or no-tech, label every kid in the I.T. department a “computer professional.” But the computer professionals exemption only applies if: (1) he receives at least the legal minimum rate of pay for computer professionals; and (2) he is primarily engaged in certain statutory duties. Few employees will truly fall into the “computer professional” exemption, and even when they do, several exceptions to the exemption might apply. So here’s a user-friendly guide to determine whether you’re really an exempt “computer professional.”

The “Earnings” Test for Computer Professionals

The “computer professional” exemption doesn’t apply to an employee in the “computer software field” if he doesn’t receive at least the legal minimum rate of compensation for computer professionals. Every October 1, the Department of Industrial Relations must, by law, raise the minimum pay rate for exempt computer professionals in an amount equal to the percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers.1 Effective January 1, 2015, an employee isn’t subject to the “computer professional” exemption unless he receives at least $41.27 per hour, $7,165.12 per month, or $85,981.40 per year. That means most kids in I.T. won’t be exempt.

Even if an employee pioneers a smartphone that runs on pixie dust, he still won’t be a computer professional within the meaning of the law if his employer fails to comply with the “minimum earnings” test by even one penny. California law doesn’t allow an employer to underpay an employee and still claim the “computer professional” exemption – or any other exemption – even if the employer “substantially complied” with the “minimum earnings” test. That’s true even if the employer pays the employee the prevailing industry wage to establish the latter’s status as an H1-B visa worker. Good enough isn’t. So if your employer pays you $41.26 per hour, get an employment attorney.

The “Duties” Test for Computer Professionals

Even if an employee makes $85,981.40, $185,981.40, or $1,850,981.40, he still isn’t exempt unless: (1) his work is primarily intellectual or creative and requires him to exercise discretion and independent judgment over a consequential matter; (2) he primarily applies systems analysis techniques and procedures to determine hardware, software, or system functional specifications or primarily designs, develops, documents, analyzes, creates, tests, or modifies computer systems or programs; and (3) he is highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering.2

But an employee isn’t a “computer professional” if: (1) he’s a trainee or entry-level employee and is only learning to apply highly specialized information to computer systems analysis, programming, or software engineering; (2) he operates computers or manufactures, repairs, or maintains computer hardware and related equipment; (3) he’s an engineer, drafter, machinist, or other professional, and though he depends on computers and software and is skilled in design software, he isn’t in a skilled computer-related occupation; (4) he writes material for print or on-screen media or for customers, subscribers, or visitors to computer-related media; or (5) he’s a special effects artist; etc.3

  1. Lab. Code §515.5(a)(4). 

  2. Lab. Code §515.5(a); 8 Cal. Code Regs. §11040(1)(A)(3)(h). 

  3. Lab. Code §515.5(b). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.