of the workweek must, first and foremost, be examined and the amount of time the employee spends on such work, together
with the employer’s realistic expectations and the realistic requirements of the job, shall be considered in determining whether
the employee satisfies this requirement.
(g) Such employee must also earn a monthly salary equivalent to no less than two (2) times the state minimum
wage for full- time employment. Full-time employment is defined in Labor Code Section 515(c) as 40 hours per week.
(3)
Professional Exemption. A person employed in a professional capacity means any employee who meets all of
the following requirements:
(a)
Who is licensed or certified by the State of California and is primarily engaged in the practice of one
of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or
accounting; or
(b) Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the
purposes of this subsection, “learned or artistic profession” means an employee who is primarily engaged in the performance of:
(i)
Work requiring knowledge of an advanced type in a field or science or learning customarily acquired by a
prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and
from an apprenticeship, and from training in the performance of routine mental, manual, or physical processes, or work that is an
essential part of or necessarily incident to any of the above work; or
(ii)
Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to
work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of
which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily
incident to any of the above work; and
(iii)
Whose work is predominantly intellectual and varied in character (as opposed to routine mental, manual,
mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be
standardized in relation to a given period of time.
(c) Who customarily and regularly exercises discretion and independent judgment in the performance of duties set
forth in subparagraphs (a) and (b).
(d) Who earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time
employment. Full-time employment is defined in Labor Code Section 515 (c) as 40 hours per week.
(e)
Subparagraph (b) above is intended to be construed in accordance with the following provisions of federal
law as they existed as of the date of this wage order: 29 C.F.R. Sections 541.207, 541.301(a)-(d), 541.302, 541.306, 541.307,
541.308, and 541.310.
(f) Notwithstanding the provisions of this subparagraph, pharmacists employed to engage in the practice of
pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional
employees, nor shall they be considered exempt from coverage for the purposes of this subparagraph unless they individually
meet the criteria established for exemption as executive or administrative employees.
(g) Subparagraph (f) above shall not apply to the following advanced practice nurses:
(i)
Certified nurse midwives who are primarily engaged in performing duties for which certification is required
pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6 of Division 2 of the Business and Professions Code.
(ii)
Certified nurse anesthetists who are primarily engaged in performing duties for which certification is required
pursuant to Article 7 (commencing with Section 2825) of Chapter 6 of Division 2 of the Business and Professions Code.
(iii)
Certified nurse practitioners who are primarily engaged in performing duties for which certification is required
pursuant to Article 8 (commencing with Section 2834) of Chapter 6 of Division 2 of the Business and Professions Code.
(iv)
Nothing in this subparagraph shall exempt the occupations set forth in clauses (i), (ii), and (iii) from
meeting the requirements of subsection 1(A)(3)(a)–(d) above.
(h) Except, as provided in subparagraph (i), an employee in the computer software field who is paid on an hourly basis
shall be exempt, if all of the following apply:
(i)
The employee is primarily engaged in work that is intellectual or creative and that requires the exercise
of discretion and independent judgment.
(ii)
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.
(iii)
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 this exemption.
(iv)
The employee’s hourly rate of pay is not less than forty-one dollars ($41.00). The Office of Policy,
Research
and Legislation 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.
1
1
Pursuant to Labor Code section 515.5, subdivision (a)(4), the Office of the Director-Research, Department of Industrial
Relations, has adjusted the minimum hourly rate of pay specified in this subdivision to be $49.77, effective January 1, 2007. This
hourly rate of pay is adjusted on October 1 of each year to be effective on January 1, of the following year, and may be
obtained at
https://www.dir.ca.gov/oprl/ComputerSoftware.htm or by mail from the Department of Industrial Relations.