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  1. #1
    Join Date
    Jun 2011
    Posts
    1

    Default California Exemption Clarification

    My question involves employment and labor law for the state of: California

    Hello
    I currently work as a help desk tech at an IT company and am paid hourly. I answer phone calls and respond to customer problems.

    My employer would like me to pass an industry exam and become certified with certain technologies. After talking to a co-worker, I learned the goal of this is so I can be converted to salary and made exempt from OT. The employer seems to go by salary = no overtime.

    My coworker does the same work that I do, but has been with the company longer and is on salary. He is not paid overtime. He works 9 hour days, every day (8am-6pm with an hour lunch). There have been weekends when he has worked 35 hours between Friday and Monday with no overtime pay and is back to work on Monday morning for another 40 hour week.

    From what I've read of CA laws, neither of us should be exempt. I'd like to be prepared if they offer a salary and exempt status. From my understanding, my coworker could have a nice amount of back pay due, and I'd rather not put myself in a situation where I need to go to the DOL to get what is owed.

    Can anyone confirm if my understanding of CA exemptions is correct? I'd like to be somewhat informed before I challenge any offer or find somewhere else to work.

    Here are the things I do on a normal day:
    Answer support phone calls from customers
    Troubleshoot and repair hardware and software issues
    Travel to customer sites to troubleshoot, install, upgrade, repair computers and servers

    Thanks very much for any insight

  2. #2
    Join Date
    Jun 2011
    Location
    Live in NV; worked in CA
    Posts
    19

    Default Re: California Exemption Clarification

    My first impression is that you are probably non-exempt based upon definitions on the California Department of Industrial Relations website.

    employee in the computer software field
    Except as provided below in paragraph 5, an employee in the computer software field who is paid on an hourly basis shall be exempt under the professional exemption, if all of the following apply:

    1. The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment.

    2. The employee is primarily engaged in duties that consist of one or more of the following:
    »» The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
    »» 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.
    »» The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

    3. The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. A job title shall not be determinative of the applicability of the exemption.

    4. The employee's hourly rate of pay is not less than $41.00 [the rate in effect on September 19, 2000]. The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. Click here for adjusted rate information (pdf) (doc).

    5. The exemption described above does not apply to an employee if any of the following apply:
    a. 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.
    b. 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.
    c. The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.
    d. The employee is an engineer, drafter, machinist, or other professional whose work is highly dependent upon 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.
    e. 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 World Wide Web or CD-ROMS.
    f. The employee is engaged in any of the activities set forth in nos. 1 through 4 above for the purpose of creating imagery for effect used in the motion picture, television, or theatrical industry.
    Source: DLSE - Glossary

    Note: Effective January 1, 2011. The rate of pay is $37.94 [hourly] or annual salary of not less than $79,050 for full-time employment, and paid not less than $6,587.50 per month.

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