Hundreds of thousands of computer workers, throughout the country are being denied a big chunk of the wages they have earned. How? These workers have been improperly classified as “Salaried - Exempt Employees.” Any employee so classified, receives a fixed annual salary. Every paycheck will be exactly the same, no matter how many hours the employee worked each week.
That classification saves employers millions of dollars a year, by the simple trick of not paying overtime wages. Whether out of ignorance, or deliberate intent, many companies automatically assign this category to all employees who are classified as “Computer Workers.”
Sorry, employers. It’s not up to you. Instead, both Federal and State Law sets forth the conditions by which employees may be classified as Exempt Workers. By far, most computer workers are mandated to be classified as “Salaried – Non exempt.” That means they are required to be paid the following
1.5 times their calculated hourly rate (annual salary/2080) for each hour beyond 8 hours in each day worked, or each hour exceeding 40 hours in a week.
2.0 times their calculated hourly rate for each hour beyond 12 worked in a single day.
Salaried Non-Exempt personnel must also be paid for two fifteen-minute rest breaks within each eight hour period worked.
2.0 times their calculated hourly rate for each hour worked on a legal holiday.What Qualifications Must the Employer Meet to Assign Exempt Status?
As of September 2000, California recognizes an hourly computer professional exemption for certain employees in the computer software field. A computer software field employee is exempt from overtime pay if all of the following requirements are met:
- 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 (spends more than half his or her time) 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 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. AND
- 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; (Job title not determinative) AND
- The employee's hourly rate of pay is not less than $45.84 per hour for every hour worked.
If the employer cannot show all of the above, the employee is non-exempt and entitled to overtime pay and other benefits. Such employees can recover wages going back three years (and in some cases four years) from the date a complaint is filed, but only up to those wages earned since September 2000.
If you are working as a computer worker for a company, you don’t need a law degree to determine whether you should be qualified as a Salary Exempt worker. First, let’s determine whether you are, indeed in that category generally qualifying for the classification, “Computer Worker.” Here is a list of titles and tasks which will be instantly suspect, if classified Exempt:
· Computer Technicians
· Software Engineer
· Customer Training Consultants
· System Administrator
· Graphic Designers
· Hardware Testers