The Computer Professional Employee Exemption in California (2020)

Hellen Wadman

To learn more about the minimum wage, see our Guide to California’s Minimum Wage Laws in 2020 and Beyond.↥ To learn more about California’s overtime law, see our article: The Ultimate Guide to California’s Overtime Wage Laws.↥ See, e.g., Cal. Code Regs., tit. 8, § 11040, subds. 3 [overtime], 4 […]

To learn more about the minimum wage, see our Guide to California’s Minimum Wage Laws in 2020 and Beyond.↥

To learn more about California’s overtime law, see our article: The Ultimate Guide to California’s Overtime Wage Laws.↥

See, e.g., Cal. Code Regs., tit. 8, § 11040, subds. 3 [overtime], 4 [minimum wage], 5 [reporting time pay], 12 [rest periods]. Subdivison 1(A) of that wage order provides that subdivisions 3 to 12 “shall not apply to persons employed in administrative, executive, or professional capacities.”↥

29 U.S.C. § 213(a); Labor Code, § 515, subd. (a) [“The Industrial Welfare Commission may establish exemptions from the requirement that an overtime rate of compensation be paid pursuant to Sections 510 and 511 for executive, administrative, and professional employees . . . .”]; Cal. Code of Regs., tit. 8, § 11040, subd. (1)(A).↥

See, e.g., Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 329 [“The record contains substantial, if disputed, evidence that deliberate misclassification was defendant’s policy and practice.”].↥

29 U.S.C. §§ 201⁠–⁠219.↥

29 C.F.R. §§ 541.0⁠–⁠541.710 [federal regulations governing exemptions]; Cal. Code of Regs., tit. 8, §§ 11010⁠–⁠11538 [California regulations adopted by the Industrial Welfare Commission].↥

29 U.S.C. § 218; Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21, 34 [“[F]ederal law does not control unless it is more beneficial to employees than the state law.”]; see also Pacific Merchant Shipping Ass’n v. Aubry (9th Cir. 1990) 918 F.2d 1409, 1419 [finding that the FLSA did not preempt states from enforcing more protective overtime laws than federal law]; Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 795 [“The FLSA explicitly permits greater employee protection under state law.”].↥

29 C.F.R. § 778.5 [“Various Federal, State, and local laws require the payment of minimum hourly, daily or weekly wages different from the minimum set forth in the Fair Labor Standards Act, and the payment of overtime compensation computed on bases different from those set forth in the Fair Labor Standards Act. Where such legislation is applicable and does not contravene the requirements of the Fair Labor Standards Act, nothing in the act, the regulations or the interpretations announced by the Administrator should be taken to override or nullify the provisions of these laws. Compliance with other applicable legislation does not excuse noncompliance with the Fair Labor Standards Act. Where a higher minimum wage than that set in the Fair Labor Standards Act is applicable to an employee by virtue of such other legislation, the regular rate of the employee, as the term is used in the Fair Labor Standards Act, cannot be lower than such applicable minimum, for the words ‘regular rate at which he is employed’ as used in section 7 must be construed to mean the regular rate at which he is lawfully employed.”].↥

See, e.g., Cal. Code Regs., tit. 8, § 11010, subd. 1(A)(1)(e) [“The activities constituting exempt work and non-exempt work shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order: 29 C.F.R. Sections 541.102, 541.104-111, and 541.115-116.”].↥

Taylor v. United Parcel Service, Inc. (2010) 190 Cal.App.4th 1001, 1015 [“Federal law interpreting similar components of the FLSA exemptions is properly considered as persuasive authority, even if not binding on this court.”].↥

Soderstedt v. CBIZ So. Cal., LLC (2011) 197 Cal.App.4th 133, 150.↥

29 C.F.R. § 541.600(a) [“To qualify as an exempt executive, administrative or professional employee under section 13(a)(1) of the Act, an employee must be compensated on a salary basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities.”]; Cal. Code of Regs., tit. 8, § 11040 [providing that, for each exempted category, the employee must earn “a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment”].↥

29 C.F.R. § 541.601(a)(2) [“An employee shall be exempt under section 13(a)(1) of the Act if: . . . (2) .The employee customarily and regularly performs any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee identified in subpart B, C, or D of this part.”]; Labor Code, § 515, subd. (a).↥

Labor Code, § 515.5, subd. (a)(4) [“The employee’s hourly rate of pay is not less than thirty-six dollars ($36.00) or, if the employee is paid on a salaried basis, the employee earns an annual salary of not less than seventy-five thousand dollars ($75,000) for full-time employment, which is paid at least once a month and in a monthly amount of not less than six thousand two hundred fifty dollars ($6,250). The department shall adjust both the hourly pay rate and the salary level described in this paragraph 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.”]. The adjustment for 2020 was announced on October 22, 2019. (Memorandum from the Dept. of Indus. Relations (Oct. 22, 2019), available here (Opens in new window)).↥

29 C.F.R. § 541.400(b); Dept. of Labor, Fact Sheet #17A (Opens in new window).↥

Alvarado v. Dart Container Corp. of California (2016) 243 Cal.App.4th 1200, 1207, [“Where federal and California laws conflict, the law most beneficial to employees applies.”].↥

Labor Code, § 515.5, subd. (a)(1).↥

Labor Code, § 515.5, subd. (a)(3).↥

Labor Code, § 515.5, subd. (a)(2).↥

Martin v. Indiana Michigan Power Co. (6th Cir. 2004) 381 F.3d 574 [“the regulations provide that an employee’s primary duty must require ‘theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering’ not merely ‘highly-specialized knowledge of computers and software’”].↥

Labor Code, § 515.5, subd. (b).↥

Martin v. Indiana Michigan Power Co. (6th Cir. 2004) 381 F.3d 574, 580⁠–⁠581 [IT tasks—”installing and upgrading hardware and software on workstations, configuring desktops, checking cables, replacing parts, and trouble-shooting Windows problems⁠—⁠are all performed to predetermined specifications in the system design created by others”; maintaining a computer system within “predetermined parameters” does not involve the kind of design and development of systems or software that the duties test requires].↥

Taylor v. United Parcel Service, Inc. (2010) 190 Cal.App.4th 1001, 1009.↥

Taylor v. United Parcel Service, Inc. (2010) 190 Cal.App.4th 1001, 1010.↥

To learn more about remedies and how to pursue them, see our article, How to File a Wage and Hour Claim in California.↥

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