Computer Employee Exemption
A computer professional is an employee that works in a skilled computing job as a systems analyst, computer programmer, software engineer, web or app developer, machine learning scientist, or other similarly technical and specialized role.
Certain computer professionals are exempt from the Fair Labor Standards Act (FLSA), federal labor law that requires employers to provide minimum wage and overtime pay to their employees. Many are also exempt from California labor laws requiring employers to provide meal and rest breaks to their employees, in addition to minimum wage and overtime pay.
The federal and California computer exemption checklists differ slightly. However, both the FLSA and California law clearly state that job titles cannot determine exempt status for computer professionals. Rather, to qualify as exempt, computer professionals must pass certain tests concerning their job duties and earn a minimum yearly or hourly salary as determined by law.
Improperly classifying computer professionals as exempt is a violation of both federal and state labor law. Computer professionals who have been improperly classified may be entitled to back wages, overtime pay, and other damages dating back several years of employment.
Are You Classified Correctly?
If you believe you’ve been intentionally or inadvertently improperly classified under the computer exemption, you may be eligible to file a wage claim to recover your damages.
Understand your rights as a worker. Call toll-free (800) 254-9493 or fill out the form to speak with an employment attorney about your potential wage claims. All consultations are free and confidential.
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| Acosta | $9.9 million for unpaid overtime and business expenses |
| Spansion | $8.5 million for employees laid off without proper notice |
| Masco | Backpay for workers who were misclassified |
| Fleetwood | Backpay for employees laid off without proper notice |
| Cosmo | $1 million for merchandisers who were not compensated for off-the-clock work |
| First Franklin | Backpay for workers who were not paid overtime |
FLSA Computer Exemption
The FLSA clearly states that job titles cannot determine exempt status for computer professionals.
For an employee to qualify for the computer employee exemption, each of the following job tests must be met:
- The employee must be compensated either on a salary or fee basis at a rate not less than $455 per week, or $27.63 per hour
- The employee must be employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computing field performing the duties described below
- The employee’s primary duty must consist of at least one 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, creations, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications
- The design, documentation, testing, creation, or modification of computer programs related to machine operating systems
- A combination of the above duties, the performance of which requires the same level of skills
Federal Exceptions
The computer employee exemption does not apply to:
- Employees who manufacture and repair computer equipment and hardware
- Employees whose work is highly dependent on or facilitated by the use of computers and computer software and programs
California Computer Professional Exemption
The exemption for computer professionals in California includes additional job tests and contains a different salary requirement than the FLSA computer exemption.
Computer professionals in California qualify for the computer exemption when:
- They are primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment
- They are 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 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
- They are highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering
- Their hourly rate of pay is not less than $42.35, or $88,231.36 per year
California Exceptions
Similar to the FLSA’s computer exemption, California’s computer exemption excludes employees who work to maintain or repair computers and whose job is highly dependent upon the use of computers or computer software and programs. There are some additional exceptions to the computer employee exemption in California.
The complete list of California employees who are ineligible for the computer exemption include:
- Trainees or entry-level computer employees
Employees learning to become proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering - Closely supervised computer employees
Employees in computer-related occupations that have not attained the skill level and expertise necessary to work independently and without close supervision - Computer manufacture, repair, and maintenance workers
Employees engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware and related equipment - Engineers, drafters, machinists, and others
Employees whose work is highly dependent upon or facilitated by the use of computers or computers 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 - Computer-related media writers
Employees 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 onscreen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to the computer-related media - Special effects artists
Employees engaged in any of the above activities for the purpose of creating imagery used for effect in the motion picture, television, or theatrical industry
Our Employment Experience
Our employment attorneys have been representing classes of employees in state and federal litigation against their employers for over 20 years.
We have successfully litigated employment cases concerning unpaid overtime, meal breaks, and business expenses; employee misclassification; and mass layoffs without proper notice, recovering millions of dollars on behalf of our clients against some of the world’s largest corporations.
Girard Gibbs has been recognized a Tier-1 law firm by U.S. News – Best Lawyers consecutively since 2013, and founders Daniel Girard and Eric Gibbs have been named among the Best Lawyers in America consecutively since 2012.
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