California Computer Programmers Entitled to Overtime Pay
If you are one of the over 200,000 computer software professionals in California, your employer may be short changing you when it comes to overtime pay. Employers and employees generally assume that salaried professionals are exempt from receiving overtime pay, but this is far from true. Computer programmers and software developers are generally entitled to overtime pay unless they fall within one of the California exemptions which allow employers to not pay overtime.
To qualify for the “computer professional” exemption, an employee must meet the following requirements under California Labor Code, Section 515.5:
(1) The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment, and the employee is primarily engaged in duties that consist of one or more of the following:
(A) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
(B) 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.
(C) The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
(2) 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 this exemption.
In addition, the employee’s rate of pay must be equal to or greater than $37.94 per hour or $79,050 per year and this must be paid in amounts not less than $6,587.50 per month. On November 3, 2009, the California Division of Labor Standards Enforcement (DLSE) confirmed that these rates remain in effect for 2010.
It is the employer’s legal burden to prove that ALL of the aforementioned qualifications are met, and that the employee does not fall under another exemption ie. Administrative,
Executive or Professional, then the employee must be paid all overtime. It is not uncommon for employers to misclassify employees or alter their pay structure in order to avoid legally required overtime compensation. There are a substantial number of Class Action Cases that have prevailed on this point against the largest Fortune Five Hundred Companies. This practice typically goes unchecked, because employees rely on their companies to know and follow the law and it is not uncommon that companies do not adequately police themselves.
The best way to counteract attempts by employers to avoid payment of overtime is for employees to know their rights. If you are a computer professional and believe you may be entitled to overtime, take the time to contact an experienced California labor attorney. An attorney can provide you with an unbiased evaluation of your situation and may be able to help you collect several years of back overtime pay.
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