California Employee Rights Advocate : California Labor Attorney & Lawyer : Southern CA Employment Law : Los Angeles, Orange County : United Employees Law Group

Labor Code Section 515.5 dictates that certain software employees are exempt from overtime pay and Labor Code Section 510 sets forth the minimum that these exempt software employees shall be paid.

It’s Important to first identify who is considered exempt from over time. According to the California Department of Industrial Relations all of the following criteria must be met:

1. The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment.
2. The employee is primarily engaged in duties that consist of one or more of the following:

o The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications.
o 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.
o The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.

Next, we can look at the rough road exempt software employees have had over the last decade. In 2000 the minimum salary for an exempt employee was equal to no less than $41.00 an hour. By 2007 it had climbed to equal not less than $49.77 an hour. Unfortunately in 2008 during our economic meltdown, this amount was reduced drastically to $36.00 an hour. There have been gradual annual increases. In fact, effective January 1, 2012 the increases will be no less than $38.89 an hour, or no less than $81,026.25 annually, or no less than$6752.19 monthly.

It’s important to note that although the minimum per hour has been effective since 2000, it was until the drastic decrease in 2008 that California labor laws also made sure that there would be a monthly and an annual minimum requirement. Thus ensuring that the while the employee may not be getting time and a half for all overtime hours worked they would be certain that their pay check would remain at or above the monthly and annual requirements while still meeting the minimum pay per hour.

California labor laws can be confusing and multifaceted if you are a software employee exempt or non exempt it is recommended you contact a California labor law attorney to be certain you are and have been paid properly over the last four years.

If you have any questions about this article or our blog, feel free to call us at:

Long Beach – (562) 256-1047
Los Angeles – (213) 261-0229
San Francisco – (415) 200-0012 or (415) 230-2755
San Diego – (619) 342-1242 or (619) 272-2193

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Most people during the holiday season excitedly open their mailboxes in the hopes of finding cheerful greeting cards. Sadly, this is not the case for so many hard-working California employees who have lost their jobs this year. Many of these workers are checking their mailboxes not with a joyful spirit, but rather an anxious anticipation of receiving their much needed final wage checks. The good news is that employers will have to pay for causing this type of stressful delay.

Under the California Labor Code, discharged employees are entitled to immediate payment of wages for time worked. “Discharged” employees include those who have completed a specific assignment or period of work for which they were hired.  In the case of a termination, all “wages earned and unpaid at the time of discharge are due and payable immediately.” (Labor Code Section 201) In the event of resignation, payment must be made within 72 hours. (Labor Code Section 202)
Failure to issue payment within the aforementioned time constraints may subject the employer to a “waiting time” penalty. For each day wages go unpaid, the employer will be accessed an amount equal to the employee’s daily rate of pay for up to a maximum of thirty days. (Labor Code Section 203) The inability of an employer to pay wages will not preclude the accrual of penalties.

While application of this penalty may seem straightforward, there are several nuances that all employees should understand. First and foremost, employees will not be awarded penalties where they avoid or refuse to receive payment of wages; for example, secretly leaving the workplace and failing to provide the employer with future contact information. Employers are not required to pay wages without question. If a “good faith dispute” exists concerning the amount of wages due and owing to an employee, the employer may delay payment without penalty. As the California Department of Industrial Relations explains:

A "good faith dispute" that any wages are due occurs when an employer presents a defense, based in law or fact which, if successful, would preclude any recovery on the part of the employee. The fact that a defense is ultimately unsuccessful will not preclude a finding that a good faith dispute did exist. However, a defense that is unsupported by any evidence, is unreasonable, or is presented in bad faith, will preclude a finding of a "good faith dispute". Labor Code Section 203 and Title 8, California Code of Regulations, Section 13520

When a “good faith” defense is asserted, employees are still entitled to immediate payment of the portion of wages not in dispute. If the employer delays payment of undisputed wages, waiting penalties will still be accessed. (Labor Code Section 206)

Employees must also be aware that they only have a fixed amount of time in which to file a claim to collect wages and waiting time penalties. If both final wages and penalties are being claimed, the statute of limitations is four years. On the other hand, if only waiting time penalties are being claimed, then the statute of limitation is one year. 
Consequently, if you are waiting for payment of final wages or believe you may be entitled to penalties, you should not wait to take action.

Strategy:

1. At the time of discharge, remind your employer that they are obligated to immediately pay your earned wages and accrued vacation.
2. If your employer attempts to delay payment or disputes what is due and owing, ask for a specification of the amount of wages disputed and not disputed. Request immediate payment of any undisputed wages and remind them of the possibility of waiting time penalties.
3. If your employer makes a latter attempt to pay your wages, do not avoid or refuse payment as this may preclude you from collecting penalties.
4. Keep the envelope that your wages came in as proof of date you received your final check.
5. Finally, be aware of the statute of limitations. Immediately contact an experienced California labor attorney to discuss your rights and legal remedies.
 

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