California Software Developers Overtime: We Feel Your Pain

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San Francisco, CAOkay, so you're a California software developer. You love what you do, and you make a decent living at it. You reside in one of the most glorious places on earth—but you don't necessarily love your life. That's because you also love your wife and your kids, and your hobbies, but you have no time for them because you're spending 80 hours a week staring bug-eyed into a computer monitor. Worse, you're denied overtime that you think is your right under the California overtime statutes.

Software OvertimeAnd enough with the "hey, you're one of the team" and "we're all in this together" BS. You haven't seen the sun in days; you're putting on weight because you don't have the time to run anymore. Your son hit his first home run in Little League while you were a no show—again—and your lovely bride is not bothering to return your emails anymore.

And for what? You signed on to make your mark in the industry, not be sold into slavery. And that's what it feels like. So what if there is a couch, and a dartboard, and a bar fridge full of coolers. Living at work and just seeing your family during vacations is not the way it's supposed to happen. Nor should you apologize for making decent coin based on the skill set you brought to the company—a skill set they pleaded, begged and cajoled you into bringing to their firm.

In the process they have hijacked your life. Worse, you're not getting paid for all those extra hours, and not only are you made to feel like a second-class citizen for even bringing the matter up, your employer claims that you are exempt.

You're not so sure. And if your job depends on you spending so much time away from your family, you're bloody well going to be paid for it and receive whatever is your due.

Okay, here's a quick primer. We'll be fast, because you have to get back to the code.

Basically, an employee is presumed to be entitled to overtime pay under federal, and California law. Sort of like an individual is presumed innocent until proven guilty. As well, the burden of proof for properly paying employee overtime falls to your employer, not to you.

Your right to overtime pay does not hinge on whether or not you are a salaried employee. Many salaried employees are entitled.

The key is the work activity—and not job title, or responsibilities when it comes to overtime pay. That's what governs it—the activity you're involved in, and in California the labor statutes hinge on what you do for over half of your day. You may have been given a job title that, in your employer's mind, precludes the need to pay you the overtime that is your due, but even the job title does not affect your basic right to overtime.

And the lock pattern that governs whether that key fits, is the exemption that may, or may not apply to you.

That exemption is known as the Computer Software Professionals Exemption, or Computer Programmer's Exemption. If you spend more than half your day doing any of the following, you would be considered exempt:

Application of systems analysis techniques and procedures, to determine hardware, software, or system functional specifications;

Design, development, testing, or modification of computer systems or programs based on user or system design specifications; and

Testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

For the exemption to apply to you, see if you can find yourself here:
Are you skilled, and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering? Then you may be exempt.

Is your hourly rate of pay not less than forty-one dollars ($41.00) as adjusted by the California Consumer Price Index for Urban Wage Earners and Clerical Workers to January 1, 2001?

Are you primarily engaged in work that is intellectual or creative?

Do you exercise discretion and independent judgment?

For that matter, it doesn't much matter what you think, for according to California law if your employer can't show all of the above, then you would be considered non-exempt and entitled to overtime pay and other benefits.

Sound good so far? Don't worry, they're not watching. Read on…
Trainees, or employees in entry-level positions learning to become proficient in the theoretical and practical application of computer systems and software are entitled to overtime pay.

Employees who do not have the skill and expertise necessary to work independently and without close supervision, also get it.

Employees who merely operate computers are not exempt. This includes engineers, draftsmen, or machinists who use software such as CAD/CAM. If that's you, sorry to burst your bubble. Maybe you're not as important as that high-end software programmer. But here's the good news—you get overtime.

Employees who manufacture, repair, or maintain computer hardware and related equipment are NOT exempt from overtime.

Anybody who writes content for the World Wide Web or CD-ROMs qualifies for time-and-a-half.

And employees who create imagery for effects used in the motion picture, television, or theatrical industry CAN claim overtime pay.

Okay, that's enough to get you started. We know you don't have the time to do all the legwork on this, as you're tied to that bloody computer monitor morning, noon and night. We understand. That's why you should call a good California Software Developer Overtime lawyer and have her do the legwork for you. You make enough money to afford a lawyer. And just think—if you are owed back overtime and get what is coming to you, you'll be able to more than afford to buy your legal team a round at the celebration afterwards.

Imagine—taking the night off to celebrate your success, then going home to see your kids. Maybe even take the weekend off.

Tomorrow could be a whole new day, baby—especially if you qualify for overtime that has been denied, in spite of all your hard work. But you won't know, unless you find out. And finding out, could be as easy as making a phone call...

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