Hi-Tech Professionals - Are They Exempt From Overtime?

"Computer professional" positions that often qualify for overtime pay include:
  • Computer Technicians
  • Software Engineers
  • Customer Training Consultants
  • System Administrators
  • Graphic Designers
  • Systems Analysts
  • Programmers
  • Tech-Support
  • Trainees or entry-level employees
  • Employees in computer-related occupations who have not attained the skill and expertise necessary to work independently and without close supervision
  • Employees who are engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment
  • Engineers, drafters, machinists, or other professionals whose work is highly dependent upon or facilitated by the use of computers and computer-aided design software, including CAD/CAM
  • Employees who write material related to computers for print or on-screen media or who write or provide content for computer related media such as the World Wide Web or CD-ROMS
  • Employees who create imagery for effects used in the motion picture, television, or theatrical industry
Do You Qualify for Unpaid Overtime?

Information technology (IT) workers are becoming increasingly recognized as being overworked. Their work day consists of long hours during which they attend to emergency calls in and out of a regular shift (including initiating major updates on "off hours"). Many times they are not recognized by their employers for their after-hours contributions despite their role as "IT Rescuer" when a tech issue arises.

Employers regularly misunderstand the very limited overtime exemptions that apply to some computer workers. As a result, IT employees who are involved in the application of systems analysis techniques, develop or design software or operating systems, or perform related functions are frequently exempted from deserved overtime pay. This IT worker exemption has become a serious topic among the computer literate and, consequently, IT workers have been trying, and winning, cases against their employers for denied overtime.

California labor code §510, subd. (a), mandates that all employees who work in excess of eight hours in one workday or in excess of 40 hours in one workweek receive overtime pay. The exemptions are affirmative defenses, and thus an employer bears the burden of proving that an employee is exempt. Additionally, exemptions from mandatory overtime provisions are narrowly construed and with an eye towards the protection and benefit of employees.

Many employers feel that paying a salary is the only thing they are required to pay to IT workers. Under the applicable law, this is often not the case.

If you are an IT employee and have any questions regarding whether or not you are properly classified as an exempt employee, please contact us.

Non-Exempt Computer Professionals

The duties of our clients who are not exempt and therefore owed overtime pay are typically engaged in one or more of the following (or similar) tasks:

  • Systems analysis, programming, and software engineering;
  • Computer systems or programs: Design, development, documentation, analysis, creation, testing, or modification of computer systems and programs, including prototypes, based on and related to user or system design specifications;
  • Computer operating systems: Documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems; and
  • Employees that are highly skilled and proficient in the theoretical and practical application of highly specialized information related to computer usage.

IWC Wage Orders, section 1(A)3(h) applies the "computer professional" exemptions if
all of the following apply:

  1. The employee is primarily engaged in work that is intellectual or creative and that requires exercise of discretion and independent judgment, and the employee is primarily engaged in duties that consist of one or more of the following:
    1. The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
    2. 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.
    3. 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 should not be determinative of the applicability of this exemption.
  3. The employee's hourly rate of pay is not less than  Forty-One Dollars ($41.00). The division of Labor Statistics and Research shall adjust its pay rate on October 1 of each year ..."
Temporary Employees and Independent Contractors

Many high tech professionals are employees of temporary employment agencies who contract them out to client companies as consultants.  These temporary agencies receive a portion of the hourly rate of pay/wages that the client company pays for the computer and/or hi-tech professional's services.

As such, these professionals do not receive the additional amounts paid for time-and-a-half (or double time) for overtime compensation without a deduction for the agency commission.  Furthermore, these professionals are treated as independent contractors by the temp agency's client company, but, in actuality, do not have the freedom of independent contractors, nor are they able to deduct the full range of business expenses. In addition, they do not receive the benefits and stock options that other employees receive, nor can they qualify for the benefits supposedly offered by the agencies.

If you are a computer or high-tech professional who has been classified as exempt from overtime by your employer, or if you are employed as a temporary employee or independent contractor, contact the Carter Law Firm today to determine if your rights to overtime pay have been violated.