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Many Factors Determine 'Exempt' Designation

March 25, 2001

Q: For 10 years I have worked for a company that is based out of state. I was hired in California and have lived in the state the entire time.

I am considered an "exempt" employee, although I have generally worked alone and have never supervised anyone. I work long hours, many days in a row, but receive only my regular monthly salary.

In our organization, other workers travel to the same locations, installing computer equipment that I later program. They are "nonexempt." Neither position requires professional education, only on-the-job and industry experience. The base pay for the other job is generally the same as mine.

Why would my job be considered exempt? If there is no real reason, how should I proceed?

--R.S., Thousand Oaks

*

A: Figuring out whether an employee is exempt or not exempt from overtime rules is not an exact science.

Normally, employees can be considered exempt from overtime rules if they are employed as managers, administrators or professionals.

Although you would not appear to fit into these categories, federal and state laws permit individuals in certain computer-related occupations to qualify as professionals who are exempt.

In this situation, employees would not have to receive a salary to be classified as exempt. Hourly workers would have to receive at least $41 an hour, however.

Workers would be exempt from overtime compensation if they are:

* Primarily engaged in intellectual or creative work that requires the exercise of discretion and independent judgment.

* Highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering.

* Primarily performing such duties as using systems analysis techniques to determine hardware or software specifications; the design, development, documentation, analysis, creation, testing or modification of computer systems or programs (including prototypes); or modification of computer programs related to the design of software or hardware for computer operating systems.

It is difficult to determine from your description whether you would be exempt under these criteria, but you should keep in mind that there is a difference between installing and working with computer equipment and computer software.

As a programmer working with software, you are more likely to be exempt than employees who install computer equipment.

But even if you can't provide a solid legal argument for more money, you still should consider raising pay concerns with the company.

You might keep track of the number of hours that you spend on the job to determine the hourly rate of pay. If you are not being paid more than those installing the equipment, something probably is unfair. And management should be concerned about what you are really being paid for the hours that you are working.

--Don D. Sessions

Employee rights attorney

Mission Viejo

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