Computer Professional Overtime Exemption

Under US labor rules, some computer programmers are exempt from overtime laws. There is considerable misunderstanding about this law. I'm not an expert, or even novice, about this law, but am compiling this page as a resource for study and to increase understanding. Corrections to johnk-at-riceball-dot-com are appreciated. If you would like to network and get on a mailing list about this issue, please write to that address as well.

Everything on this page pertains to labor laws in the United States. Additionally, there may be links to attorneys' business pages. I am not affiliated with any of those sites, so do not construe any link as an endorsement.

Overtime is considered any work done past 40 hours a week. Hours worked beyond that are to be paid at 1.5 times the regular hourly wage (or based on salary). Overtime is defined by the Fair Labor and Standards Act (FLSA). (CA FAQ on Overtime.)

There are some jobs exempt from the law, and these are generally called "overtime exemptions" and are defined in the FLSA. Among the jobs exempted are computer programmers, called "computer professionals", who make at least a minimum salary defined by the law. These laws can vary by state, and California has a minimum salary that's higher than the federal salary.

Read the Computer Professionals Exemption in detail at the DOL. For detailed rules, see Subpart E of Title 29 of the CFR.

The first key point is that the exemption is defined by job duties and salary, not title. So if you have a title of "programmer" but spend most of your time doing system administration or "ops", you might not be exempted (that is, you are entitled to overtime pay). On the other hand, if you are a technical writer, QA, game tester, project manager, or other worker in the development effort, you may be exempt. If you split your work between management and development, you are probably exempt, because management is generally exempt unless you are some kind of "supervisor" with no input into decisionmaking.

The second key point is that the exemption applies only to employees who are paid more than a minimum level, and this level rises annually. The current rule is $455 a week, or $27.63 an hour. (In annual terms, that is $23,660 or $55,260 per year. As of Jan 13, 2013.)

In California, the rule is different, with different terms and minimum salary levels. See also Sections 510 and 515.5 for details. The current wage as of 2012 is $38.89 per hour, or $6,752.19 per month. That is $77,780 or $81,026.28 per year. (If you think that's good, the rate in 2000 was $41 per hour, and in 2007 was $49.77. This happened because SB 929 cut the rate to $36 an hour in 2008. More on this below.)

Also note that no distinctions are really made between waged and salaried positions. Salaried workers are entitled to overtime, but this isn't popularly known. What determines exemptions are job duties, responsibilities, and minimum salary. There is considerable misunderstanding about this, by both employers and employees. Notes: *, *, *, *, *.

Getting your time counted as overtime is not discussed in what I've read, but as I understand it, if you're going over 40 hours a week, you must request permission to work over 40. If approved, then you are working overtime. If you don't make this request, and continue to work, your employer could probably say they didn't know you were working that much.

On the other hand, if it's stated that you must work longer, that's probably automatically considered overtime. If you're not paid for it, then, you're being denied what you're earning.

What to do if you think you're owed

I don't know. I haven't dealt with that. However, I do know you should start logging all your hours at work, in a paper notebook, in pen. Photocopy it regularly too. Then you'll be in a better position to file a wage claim. Here's a link to the page at the CA DLSE about wage claims.

Misunderstandings

There's generally a lot of misunderstanding of the labor laws, and exemptions compound the misunderstandings. This section includes links to articles, comments, and forum threads that are rife with comments by people who don't understand the law.

The 2008 Cut in the Minimum in California

I don't know anything about SB 929's history, except it was written by Dave Cogdill, but the voting record is amazing. Many of the supporters were generally those with labor support. The bill concerned prevailing wage changes and its effects on benefits, so it was really only of interest to construction unions. So it's hard to figure why this computer worker law got in there. Also, there were no "No" votes against it, so it wasn't fought. This speaks to the overall political powerlessness of tech workers in the legislature in the biggest high-tech state.

(If anyone has info about how this law got written, pls contact me. The only thing I've read is this.)

Other Links

Some media / media bias links, info on overtime, etc. Stuff that's not directly related.

USA Today - employees don't like to be forced to go home at 5pm or get paid hourly.
Comments on the Family Time Flexibility Act.
Apple Store
Overtime Exemption Examples on TV
Overtime for IT QA Lead?