Practical Advice for Classifying Employees. Presented by. Sandy Rappaport Mike Moye
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1 Practical Advice for Classifying Employees Presented by Sandy Rappaport Mike Moye
2 106 Classifying Employees General General Presumption Federal Law Fair Labor Standards Act California Law Wage Orders Labor Code DLSE Guidance
3 107 Classifying Employees General Salary Tests Exceptions Duties Tests Specific Exemptions Executive/Administrative/Professional Differences between Federal and State Law Tests Specific Exemptions
4 Executive Exemption 108
5 109 Executive Exemption Manages all or part of the business permanent responsibility Directs work of 2 or more employees Makes hiring/firing decisions effective recommendations Regularly exercises discretion and independent judgment
6 110 Executive Exemption (continued) Spends more than 50% of time on exempt duties Earns at least $ /month ($33,280.00/year)
7 Administrative Exemption 111
8 112 Administrative Exemption Basic requirements: Salary at least $2, per month Work of substantial importance to the management or operations of the employer s business or employer s customers: Not production or sales Non-manual Customarily uses discretion and independent judgment Primarily engaged in performance of administrative duties
9 113 Administrative Exemption (continued) Administrative duties/positions: Advisory specialists - tax experts, insurance experts, sales research experts, investment consultants Heads of functioning departments - credit managers, purchasing agents, personnel directors Assistant to executive - performs work of executive due to work load (not simply secretary to president) No application of set standards to decision process
10 Professional Exemption 114
11 115 Professional Exemption Licensed: Attorneys CPAs Physicians Dentists Optometrists Architects Engineers Certified Teachers
12 116 Professional Exemption (continued) Learned professionals more than 50% of time spent on advanced work in a field or science usually acquired by prolonged study predominantly intellectual, varied and nonstandardized work
13 117 Professional Exemption (continued) Artistic professionals more than 50% of time spent on original, creative work in a recognized field of artistic endeavor result depends on employee s invention, talent or imagination non-standardized work with respect to time; employee controls hours he/she works
14 118 Professional Exemption (continued) Regularly exercises discretion and independent judgment Earns at least $ /month ($33,280.00/year)
15 Computer Professionals 119
16 120 Computer Professionals California and Federal law recognize exemptions for Computer Professionals But The exemption has been narrowly construed
17 121 Computer Professionals (continued) Minimum Compensation Requirements California not less than $39.90 per hour, $6, per month, or $83, per year Federal at least $27.63 per hour or $455 a week
18 122 Computer Professionals (continued) Basic requirements Highly skilled in theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering; and Primarily engaged in work that is intellectual or creative and requires the exercise of discretion and independent judgment
19 123 Computer Professionals (continued) And... Primarily engaged in one or more of the following: Application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; 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 Documentation, testing, creation or modification of computer programs related to the design of software or hardware for computer operating systems
20 124 Computer Professionals (continued) Exemption does not apply to: Trainees/Entry-level employees Employees who cannot work independently and without supervision Employees who operate, manufacture or maintain computers and related equipment Engineers, drafters, machinists or other professionals whose work is facilitated by computers, but who are not systems analysts or programmers Employees who write box labels, product descriptions and similar written material Employees in motion pictures
21 125 Computer Professionals (continued) Examples Programmer Exempt because job duties involved design, development, or modification of computer programs Bergguist v. Fidelity Information Services Technical Writer Exempt because technical writing directly related to software engineering, system analysis and computer programming Morgan-Chandler v. Consortium of Maryland
22 126 Computer Professionals (continued) Customer Training Consultant Not Exempt because duties did not involve determining hardware, software or systems functional specifications or developing or modifying computer systems or programs Dept. of Labor Opinion Systems Engineers Not Exempt because they did not design, create or modify systems or programs
23 127 Computer Professionals (continued) Learned Profession Exemption Knowledge of an advance type requiring a prolonged course of study Not general academic education an apprenticeship training in the performance of routine mental, annual, or physical process California now consistent with federal laws Professional exemption available where employees have attained advance knowledge through work experience rather than study
24 128 Computer Professionals (continued) Administrative Exemption Federal regulation: Exempt if primary duty including work such as planning, scheduling, and coordinating activities required to develop systems to solve complex business, scientific or engineering problems Example: Computer programmer Staff assistant in Information Systems Unit Senior Programmer/Analyst Operations Manager
25 Outside Sales 129
26 130 Outside Sales Exemption Requirements 18 years of age or older Works over half the time away from employer selling, obtaining orders or contracts No minimum compensation
27 Inside Sales 131
28 132 Inside Sales Exemption Professional/Clerical/Technical (Wage Order 4) or Mercantile (Wage Order 7) Earnings exceed 1½ times minimum wage for hours worked Commissions are more than ½ of compensation for a representative period Retail or service establishment Exempt only from overtime pay requirements No exemption from meal and rest breaks or other provisions of the wage orders
29 133 Protecting Exempt Status Reminders
30 134 Protecting Exempt Status 1. No Disciplinary Pay Docking
31 135 Protecting Exempt Status 2. Don't Dock Pay for Absences of Less Than a Day You can require the use of paid benefits pursuant to policy
32 136 Protecting Exempt Status 3. Don't Dock Pay for Jury Duty or Military Leave
33 137 Protecting Exempt Status 4. Don't Dock Pay Unless It's Legal
34 138 Protecting Exempt Status 5. Don't Dock Pay for Reduced Workload
35 139 Protecting Exempt Status 6. Don t Require Use of Accrued Vacation During Temporary Shutdowns
36 140 Independent Contractor or Employee General Issues Critical to do it right Aggressive enforcement by states Penalties on multiple fronts Different tests under state and federal law
37 141 Independent Contractor or Employee California Main Test Does the principal (you) have the right to direct and control the manner and means in which the worker carries out the job? Can you discharge at will & without cause?
38 142 Independent Contractor or Employee California s 10 Secondary Factors 1. Worker engaged in distinct trade or occupation? Worker makes services available to the general public? Worker performs work for more than one company at a time? Worker hires, supervises, or pays assistants? Worker has substantial investment in equipment and facilities?
39 143 Independent Contractor or Employee California s 10 Secondary Factors 2. Work done without supervision? In geographic area and in occupation, work usually done without supervision? 3. Work highly skilled and specialized? Worker trained by principal? Worker personally performs services?
40 144 Independent Contractor or Employee California s 10 Secondary Factors 4. Principal provides tools, equipment, materials, supplies, and place of work? Worker performs services on principal's business premises? 5. Services provided on long-term or repetitive basis? 6. Worker paid based on time worked or on completion of project?
41 145 Independent Contractor or Employee California s 10 Secondary Factors 7. Are services an integral part of principal's business? 8. Type of relationship parties believe they are creating?
42 146 Independent Contractor or Employee California s 10 Secondary Factors 9. Extent of actual control by principal? Worker has right to terminate relationship without liability? Principal provides instructions on how to do the work? Principal establishes work hours or number of hours to work? Principal requires work to be done in particular order or sequence? Principal requires oral or written reports from the worker?
43 147 Independent Contractor or Employee California s 10 Secondary Factors 10. Work performed for benefit of principal's business?
44 148 Independent Contractor or Employee IRS Test Behavioral control Financial control Relationship of the parties
Executive Exemption Current Long Test Current Short Test Proposed Standard Test Salary $155/week $250/week $425/week Duties Employee s primary duty is
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