Many employees in the computer technology field work long hours and weekends and are erroneously paid a salary without premium overtime pay. Under California law, many computer Information Technology (IT), Information Services (IS), and Computer Tech jobs are entitled to awards of back overtime pay going back four years. Contact us for more information.
It is a common mistake for employees to believe that they are not entitled to overtime pay because they are paid a salary, are highly skilled, or supervise other workers. Many IT, IS, and Computer Tech workers should be getting paid overtime even though they are salaried. In fact, all employees are entitled to overtime unless their employer can establish that they are exempt from overtime under one of four exemptions: managerial, administrative, learned professional, and outside sales. These exemptions require that more than 50% of an employee’s time be spent on exempt duties. Most computer technology tasks do not qualify as exempt.
Job Titles Eligible for Overtime
Whether a current or former employee, one worker can represent the interests of the entire staff to change the way employees are paid and recover four years of back pay for everyone. This is true for IT or IS staff, and other technical staff such as Quality Assurance (QA) Engineers, Test Engineers, and Software Engineers (such as SE I-III positions). Our office has secured class action recoveries on behalf of systems administrators, systems analysts, systems specialists, systems management, systems developers, senior systems administrators, UNIX infrastructure administrators, software engineers, site content developers, integrators, network engineers, network security specialists, technical support specialists, desktop support technicians, helpdesk positions, support technicians, technology team, systems developers, telecom/telephony managers and engineers, communications specialists and supervisors, communications consultants, communications managers, IT engineers, network engineers, and others.
If you spend most of your time grinding out code and are not allowed to perform more intellectually challenging tasks, such as those associated with software architecture, analysis, and design, you may be misclassified and entitled to back overtime pay. If your company treats you as code monkeys, they must pay overtime.
Some employers have “reclassified” IT and other high tech positions from salaried to hourly and started paying overtime pay. Most, however, fail to pay the four years of back pay owed for previous overtime hours worked. If you have been reclassified, contact us.
Department of Labor Opinion Letter
The United States Department of Labor issued an opinion letter on October 26, 2006 ruling that IT Support Specialists (also called Help Desk Support Specialists) did not qualify for any overtime exemption.
Common Non-Exempt IT Work Eligible for Overtime
- Installing and upgrading hardware and software
- Configuring desktop computers and applications
- Analyzing, testing and troubleshooting equipment, applications, networks
- Correcting hardware and software problems and network connectivity issues
- Installation and maintenance of telecommunications systems
Examples of Exempt IT Duties if Over 50% of all Duties
- Design, testing and deployment of new computer configurations
- Analysis and selection of new technology
- Formulating management polices for user rights and security.
- Working with vendors to determine system selections based on price, technical functionality, and support
- Documenting technical processes and organizational guidelines
- Advising upper management about IT issues
Computer Professional Exemption is Limited
The California Industrial Welfare Commission Wage Orders contain a limited computer professional exemption. See the complete text of IWC Wage Order 4.
An employee in the computer software field who is paid on an hourly basis shall be exempt, if all of the following apply:
- The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.
- 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.
- 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.
- The employee's hourly rate of pay is not less than $39.90 and, if the employee is paid on a salaried basis, the employee earns an annual salary of not less than $83,132.93 for "full-time employment," which is paid at least once a month and in a monthly amount of not less than $6,927.75. "Full-time employment" means employment in which an employee is employed for 40 hours per week. The Division of Labor Statistics and Research will adjust both the hourly pay rate and the salary level on October 1 of each year to be effective on January 1 of the following year.
The exemption does not apply to an employee if any of the following apply:
- 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.
- 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.
- The employee is engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment.
- 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.
- 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 on screen 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.
- The employee is engaged in any of the activities set forth in subparagraph (h) for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry.