220 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com adopt the proposed AWS, in a secret ballot conducted during regular working hours at the work site, (3) the employer has made a written disclosure regarding the effects of the proposed arrangement on wages, hours, and benefits, and has held at least one meeting at least 14 days before the vote, (4) the results of the election have been timely reported to the Division of Labor Statistics and Research, (5) employees have not been required to work the new hours for at least 30 days after election results were announced, and (6) the employer has not coerced any employee’s vote. Employers adopting an AWS must follow the specific rules in the applicable Wage Order or face liability for unpaid overtime. The Court of Appeal delivered this lesson in a 2018 decision. A machine operator manufacturing plastic bags worked 12-hour shifts that paid the regular rate for the first 10 hours of work and then an overtime rate for the next two hours. He sued for unpaid daily overtime wages for the time worked after eight hours. Four different time periods were involved, but the Court of Appeal held that as to each the employer was liable because the employer could not provide that it or its predecessor had met all the AWS requirements, including a written disclosure, a pre-vote meeting, a vote, a 30-day waiting period, and a report to the state.200 7.7.2 Computer professionals California exempts from overtime pay requirements computer professionals who are primarily engaged (1) in work that is intellectual or creative requiring the exercise of discretion and independent judgment and (2) in duties that consist of (a) applying systems analysis techniques and procedures (e.g., determining hardware, software, or system functional specifications), or (b) designing, developing, documenting, analyzing, creating, testing, or modifying computer systems or programs, or (c) documenting, testing, creating, or modifying the design of software or hardware, or (d) duties associated with being highly skilled in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering. Under California law, an employer seeking to establish the computer professional exemption must meet all of the foregoing requirements plus a compensation requirement. By a 2007 amendment, employers met that requirement, effective January 1, 2008, by paying $36 an hour or the annualized full-time salary equivalent (whereas, under federal law, a computer professional is required to be compensated at least $27.63 hourly).201 That rate is subject to annual increases in accordance with the California Consumer Price Index for Urban Wage Earners and Clerical Workers.202 As of January 2022, the minimum hourly rate is $53.80, and the minimum annual salary is $112,065.20. 7.7.3 Advanced practice nurses California is peculiar in not recognizing a professional exemption for registered nurses (RNs) engaged in the practice of nursing, i.e., engaged primarily in patient care. California permits an exemption only for “advanced practice nurses” (APNs), such as certified nurse midwives, certified nurse anesthetists, and certified nurse practitioners.203 The distinction between RNs and APNs is that the latter undergo months or years of specialized education and training, must be state-licensed, and perform duties that otherwise only physicians could perform. 7.7.4 Outside salespersons Under federal law, an employee qualifies as overtime exempt as an outside salesperson by regularly engaging outside the workplace in selling services or the use of facilities if the nonsales activities do not exceed 20% of the time worked.204 Sales activity includes work incidental to or in conjunction with outside sales, including incidental deliveries and collections. The time devoted to various duties is important, but not necessarily controlling. A routeman who calls on customers and takes orders for products delivered from stock, and who receives compensation commensurate with a volume of products sold, is employed for the purpose of making sales.205
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