Tech Workers Rights
Tech Workers Rights in California – ‘the land of innovation?’ Tech companies have been flocking to California since the Silicon Valley was still the Santa Clara Valley. Tech workers have helped propel California in the global market place. But, how often are their rights protected?
Are You an Employee?
Many tech workers are misclassified as “independent contractors”, or “1099 employees” meaning their employer doesn’t pay for workers’ compensation, or into disability, or unemployment insurance, or provide meal and rest periods, or overtime. In short, these employers violate the law to the detriment of their hard working employees.
California has adopted the ABC test for determining whether someone is an employee, or an independent contractor. Under the ABC test, a worker will have been “suffered or permitted to work,” and thus, an employee, and not an independent contractor, unless the employer proves each of the following:
A.that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
B.that the worker performs work that is outside the usual course of the hiring entity’s business; and
C.that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
So, if you hadn’t noticed, most people are probably employees, and not independent contractors.
Are You an Exempt Employee?
The federal Fair Labor Standards Act (FLSA) contains a complex structure of exemptions, that at least partially suspend some, or all, it’s requirements for certain classes of employees. The law exempts skilled computer employees from overtime, meal, and rest period, requirements.
Under the FLSA, computer systems analysts, computer programmers, applications programmers and systems analysts, software engineers, software specialists, and other similarly skilled workers in the computer software field may meet the exemption.
To qualify, the employee’s primary duty must be one, or more, of the following:
•The application 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 design, documentation, testing, creation, or modification of computer programs related to machine operating systems; OR
•A combination the above duties, the performance of which requires the same level of skills.
Under federal law, an employee whose duties meet the above requirements satisfies the salary test, and is exempt from overtime, meal and rest periods, if the employee is compensated on an hourly basis at a rate of at least $27.63.
The exemption under federal law only applies only to employees who are highly skilled. It does not include trainees, employees in entry level positions, or those who have not attained a level of expertise allowing them to work independently and without close supervision. No particular academic degree is required. And, the exemption doesn’t include employees engaged in the operation of computers or in the manufacture, repair, or maintenance of computer hardware in related equipment.
California law is more protective for tech workers. California has an overtime exemption for employees in the computer software field who are primarily engaged in work which is intellectual or creative and requires the exercise of discretion and independent judgment.
An employee must be primarily engaged in duties consisting of one or more of the following:
•The application 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; OR
•The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems.
In California, employees must be highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering.
Additionally, as of January 1, 2017, a computer employee’s hourly rate of pay must be at least $42.35, or an annual salary of at least $88,231.36, for full-time employment, which is paid at least once a month, and in a monthly amount of at least $7,352.62. The amount must adjust for inflation (both the hourly pay rate and the salary level) on October 1 of each year to be effective on January 1 of the following year. As of January 1, 2020, it’s $46.55 per hour or an annual salary of at least $96,968.33 for full-time employment.
The California overtime exemption does not cover an employee if:
•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 (looking at you interns);
•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 on 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 on-screen 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; or
•The employee is engaged in any of the required activities set forth above for the purpose of creating imagery for effects used in the motion picture, television, or theatrical industry.
Most tech workers are non-exempt and entitled to overtime, and meal and rest periods.
Meal and Rest Periods
With limited exceptions, employers must provide non-exempt employees rest periods, and meal periods. In a typical 8-5 day at the office, an employee should get a 10-minute break around 10, an hour for lunch around noon, another 10-minute break around 3, and be free to leave around 5. However, unless the employee is relieved of all duty during these meal and rest periods, the employee is entitled to one additional hour of premium pay per meal or rest period missed, up to two in a day. You can see how that adds up.
In California, in general, any work in excess 8 hours in one work day, 40 hours in any one workweek, and 8 hours worked on the seventh consecutive day of work in a work week, must be paid at a rate of at least 1.5 times the employee’s regular rate of pay. Tech workers are often called upon to work long hours, without getting the overtime they deserve.
If you’re a tech worker, you have rights, and your rights are probably being violated. You should contact an experienced employment attorney today.
Experience Counts and the experienced and hard working team at McCarthy Law will put their experience to work for you!
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