California Attorneys for Employee Misclassification Disputes
What Are the Requirements for a Computer Software Employee Exemption?
A computer software misclassification violation is just one of many types of unjust or prejudicial treatments employees face on the job and that we fight in court. For more about our Employment Law legal services, please see our “California Employment Law Attorney” page. Or for other types of employee work-related issues we fight for our clients, see the links to the right.
Computer software exemption does not apply to all computer tech or programmer workers. It has a narrow definition to cover specific intellectual and creative computer software work that requires independent judgment. Misclassification of workers under this exemption is particularly problematic because computer programmers and tech workers receive high salaries and work long hours all of which translates to significant overtime/double time damages.
The employee must meet ALL of the following requirements to fit the exemption:
- Earnings Test
Earns at least $84,000-$85,000 per year (this amount is adjusted annually and therefore varies depending on whether the current or past years of employment are at issue).
- Computer Software Duty Test
The employee must spend at least 50% of their time engaged in computer software duties that are defined as:
- Primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment; and
- The duties 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; and
- 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 the exemption.
- Earnings Test
- This exemption typically involves job titles including computer programmer, systems analyst, computer systems analyst, computer programmer analyst, applications programmer, applications systems analyst, applications systems analyst/programmer/software engineer, software specialist, systems engineer, and systems specialist.
- The exemption described above 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 onscreen media or who writes or provides content material intended to be read by customers, subscribers, or visitors to computer-related media such as the internet or CD-ROMS.
- The employee is engaged in any of the activities set forth above for the purpose of creating imagery for effect used in the motion picture, television, or theatrical industry.
Have You Been Misclassified? We Can Help.
The law firm of Venardi Zurada LLP provides free initial consultations for misclassification employment issues throughout the California. We are experienced employment lawyers who fight hard for our employees throughout the California. If we are able to take your case, we pay all litigation costs. We only get paid our costs and attorneys’ fees if you get compensation.
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If you are an employee who feels their rights have been violated, or you need help negotiating or reviewing your employee contract, please call to speak to one of our expert employment law attorneys at (935) 937-3900 or submit the form to the right.
When litigation or mediation is involved, and we are able to take your case, there is never any fee or expense to you of any kind until you get paid! That means we pay all litigation costs which you will not be required to pay back, and we only get paid if you get paid.
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