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California labor law says licensed engineers are exempt from overtime pay. what about non-licensed engineers?

Los Angeles, CA |

as an employer, must I compensate my non-licensed engineers? Any laws, wage orders, etc. that may be helpful?

Attorney Answers 3


The Division of Labor Standards Enforcement provides for the definition of a professional employee exemption:

A person employed in a professional capacity means any employee who meets all of the following requirements:
1.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
2.Who is primarily engaged in an occupation commonly recognized as a learned or artistic profession. "Learned or artistic profession" means an employee who is primarily engaged in the performance of:
3.a.Work requiring knowledge of an advance 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
b.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
c.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.

4.Who customarily and regularly exercised discretion an independent judgment in the performance of duties set forth above.
5.Who earns 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).

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.

For the learned professions, an advanced academic degree (above the bachelor level) is a standard prerequisite.

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Mr. Kane has provided you with THE language that will govern your situation. As you can see, being a licensed engineer is only one way you can characterize your employee as exempt. However, depending on how loosely you label someone an engineer, it would seem that most would still fall into the exempt category, as long as the other requirements are met.

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Whether a worker is exempt or nonexempt depends on their duties. It would be wise to retain legal counsel to discuss the duties of the nonlicensed engineers to make sure you properly classify them. California has started cracking down on misclassified employees by auditing and penalizing companies who misclassify their employees. If you want to avoid any issue of whether the workers are misclassified, don't have them work any overtime (over 8 in a workday or 40 in a workweek) and make sure you provide the opportunity for them to take meal periods and breaks according to Calif. law. A legal analysis of whether the unlicensed workers are exempt or nonexempt would probably take one hour or less of an attorneys' time.

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