DLSE - Glossary

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employ

To engage, suffer, or permit to work.

employee

Any person employed by an employer. Independent contractors and volunteers are not employees.

employee in the computer software field

Except as provided below in paragraph 5, an employee in the computer software field who is paid on an hourly basis shall be exempt under the professional exemption, if all of the following apply:

The employee is primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment. The employee is primarily engaged in duties that 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.



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. The employee’s hourly rate of pay is not less than $41.00 [the rate in effect on September 19, 2000]. The Division of Labor Statistics and Research shall adjust this pay rate on October 1 of each year to be effective on January 1 of the following year by an amount equal to the percentage increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers. Click here for adjusted rate information (pdf). 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 World Wide Web or CD-ROMS. The employee is engaged in any of the activities set forth in nos. 1 through 4 above for the purpose of creating imagery for effect used in the motion picture, television, or theatrical industry.

employees in the healthcare industry

"Employees in the healthcare industry" means any of the following:

Employees in the healthcare industry providing patient care; or Employees in the healthcare industry working in a clinical or medical department, including pharmacists dispensing prescriptions in any practice setting; or Employees in the healthcare industry working primarily or regularly as a member of a patient care delivery team. Licensed veterinarians, registered veterinary technicians and unregistered animal health technicians providing patient care.

employer

Any person, association, organization, partnership, business trust, limited liability company, or corporation who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.

ERISA

Employee Retirement Income Security Act, a federal law.

executive exemption

A person employed in an executive capacity means any employee:

Whose duties and responsibilities involve the management of the enterprise in which he or she is employed or of a customarily recognized department or subdivision thereof; and Who customarily and regularly directs the work of two or more other employees therein; and Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring or firing and as to the advancement and promotion or any other change of status of other employees will be given particular weight; and Who customarily and regularly exercises discretion and independent judgment; and Who is primarily engaged in duties, which meet the test of the exemption. An executive employee must also earn a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. Full-time employment means 40 hours per week as defined in Labor Code Section 515(c).

With respect to the requirement that management duties must be exercised over the entire enterprise or a customarily recognized department or subdivision thereof, it is important to note that the phrase "customarily recognized department or subdivision thereof" has a particular meaning. The phrase is intended to distinguish between " a mere collection of employees assigned from time to time to a specific job or series of jobs" and " a unit with permanent status and function." Thus, in order to meet the criteria of a managerial employee, one must be more than merely a supervisor of two or more employees. The managerial exempt employee must be in charge of the unit, not simply participate in the management of the unit.

The IWC Orders require as a basic condition for the executive exemption that the manager must supervise two or more employees. This may be one full-time and two half-time employees. It has been the experience of the DLSE that a managerial employee supervising as few as two employees rarely spends as much as 50% of his or her time primarily engaged in managerial duties.

Regarding the requirement for the exemption to apply that the employee "customarily and regularly exercises discretion and independent judgment," this phrase means the comparison and evaluation of possible courses of conduct and acting or making a decision after the various possibilities have been considered. The employee must have the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance. With respect to the executive exemption, the most frequent cause of misapplication of the phrase "discretion and independent judgment" is the failure to distinguish discretion and independent judgment from the use of independent managerial skills. An employee who merely applies his or her memory in following prescribed procedures or determining which required procedure out of the company manual to follow, is not exercising discretion and independent judgment.

exempt

Exempt status deprives an employee of certain protections of the Industrial Welfare Commission Orders.

The exemption has far-reaching ramifications since exempt status deprives the employee not only of the right to overtime compensation, but also to many of the other protections afforded to nonexempt employees by such orders. Some of the protections that do not apply to exempt employees are:

Section 3, overtime premium;

Section 4, minimum wage;

Section 5, reporting time pay;

Section 7, requirement of records under the IWC Orders (but not records required by the Labor Code);

Section 9, requirement that employer furnish uniforms and equipment (except, of course, that any expenditure by an employee is recoverable under Labor Code Section 2802).

Section 10, requirement that meals and lodging amounts be limited;

Section 11, meal period requirement; and

Section 12, rest period requirement.