There are several key points of understanding when it comes to determining whether you are exempt under the California overtime pay laws.
First, the burden is on your Employer to prove you are exempt. The governing case on this issue can be found at Nordquist v. McGraw-Hill Broadcasting Company (1995) 32 Cal.App.4th 555, 562.
Second, the actual job duties you perform and not your job title or job description determine if you are exempt or non-exempt.
Third, exemptions under the California Labor Code (state law) and exemptions under the Fair Labor Standards Act (federal law) may vary.
The professional exemption generally applies to two types of Employees. The first type is comprised of individuals who maintain licenses by the State of California and are primarily engaged in the practice of law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting. (Note that pharmacists and most nurses expressly are excluded from this exemption and therefore may be entitled to overtime compensation if they do not fall under another exemption.)
Employers sometimes make the mistake of classifying as exempt those Employees who have not yet received their licenses. In addition, with the exception of certain high-level, “computer” professionals, Employees that are paid hourly, rather than a salary, are misclassified as exempt under the professional exemption, even if they satisfy the duties test.
The second type of Employees that may be covered under this exemption are those engaged in a “learned or artistic profession.” The California Division of Labor Standards Enforcement (DLSE) recently adopted as its enforcement position, prior federal standards regarding this exemption. The DLSE's enforcement position is now consistent with the Federal Department of Labor's regulations as they existed before they were revised (and made more liberal) in 2004.
Specifically, the DLSE made clear that the “learned” professional exemption now requires learning only above the high school level. Employees no longer are required to have post-bachelor's degrees from college. However, the degree must be in the field of science or learning, and it must be required by the Employee's position in the company.
If you feel you are classified improperly as professional exempt, and may be entitled to back overtime compensation, it is prudent to have a California labor law attorney review your situation.
