Certain types of computer software professionals are exempt from overtime and meal and rest period laws. To qualify for this exemption, an employer must prove that all of the following apply:

  • The employee is paid an hourly rate of at least $40.38 per hour (effective Jan. 1, 2014) or a salary of at least $7,010.88 per month ($84,130.56 annually).
  • The employee is primarily engaged in work that is intellectual or creative.
  • The employee is engaged in work that requires the exercise of discretion and independent judgment on matters of significance.
  • The employee is primarily engaged in duties that consist of one or more of the following:
    o  Responsible for applying systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications.
    o  Responsible for designing, developing, documenting, analyzing, creating, testing or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications.
    o  Responsible for documenting, testing, creating or modifying computer programs related to the design of software or hardware for computer operating systems.
  • The employee is highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering.

It is the employer’s burden to prove that all of the applicable criteria apply to you. If any do not, you are not exempt and you are owed overtime.

However, if any of the following apply, you are not exempt:

  1. The employee is a trainee or employee in an entry-level position who is learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering.
  2. The employee is in a computer-related occupation but has not attained the level of skill and expertise necessary to work independently and without close supervision.
  3. The employee is engaged in the operation of computers or in the manufacture, repair or maintenance of computer hardware and related equipment.
  4. The employee is an engineer, drafter, machinist or other professional whose work is highly dependent on or facilitated by the use of computers and computer software programs and who is skilled in computer-aided design software, including CAD/CAM, but who is not in a computer systems analysis or programming occupation.
  5. The employee is a writer engaged in writing material, including box labels, product descriptions, documentation, promotional material, setup and installation instructions, and other similar written information, 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 the Internet or CD-ROMs.
  6. The employee is engaged in any of the activities set forth in numbers 1 through 4 above for the purpose of creating imagery for effect used in the motion picture, television or theatrical industry.

Employers screw this up all the time. A common mistake is employers misclassifying “IT” workers who primarily deal with hardware and administration of a network of computers for a business, and whose job is basically fixing routine things that go wrong. (Dealing with employees who complain “My computer has a virus!” is not an exempt task.)  Lots and lots of tech workers are commonly misclassified with fancy titles like “Senior Network Engineer” or “Systems Administrator.”

Common misclassified and actually non-exempt tasks in the tech industry include:

  • Inputting code;
  • Troubleshooting problems;
  • Beta testing;
  • Writing scripts;
  • Writing user documentation;
  • Anything involving “on-call” work;
  • Anything involving hardware;
  • Maintaining a network;
  • Installing a network;
  • Updating software.

Remember, even if you are performing exempt tasks, like making high level operational decisions, designing a new program, or negotiation vendor contracts, you need to do this work more than half of the time and you need to be paid above the minimum salary or hourly rate.

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