WSR 98-02-027

PERMANENT RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[Filed December 31, 1997, 11:03 a.m., effective February 1, 1998]

Date of Adoption: December 31, 1997.

Purpose: WAC 296-128-535 Are professional computer employees exempt from the Washington Minimum Wage Act? State-initiated amendments, creating a new section written according to clear rule-writing guidelines, are adopted to incorporate current Federal Fair Labor Standards Act overtime and minimum wage exemptions for computer software professionals into chapter 296-128 WAC.

Statutory Authority for Adoption: RCW 49.46.010 (5)(c). A typographical error was made on the CR-101 form filed on September 3, 1997, which was repeated on the CR-102 form filed on October 22, 1997. On both of those forms, under "Statutory authority for adoption", the department cited "RCW 49.46.010 (2)(c)" rather than "RCW 49.46.010 (5)(c)." The error was brought to the department's attention and has been corrected on the CR-103 form filed on December 31, 1997.

Adopted under notice filed as WSR 97-21-145 on October 22, 1997.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 1, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 1, amended 0, repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 1, amended 0, repealed 0.

Effective Date of Rule: February 1, 1998.

December 31, 1997

Gary Moore

Director

NEW SECTION

WAC 296-128-535 Are professional computer employees exempt from the Washington Minimum Wage Act? (1) Any employee who is a computer system analyst, computer programmer, software engineer, software developer or other similarly skilled worker will be considered a "professional employee" and will be exempt from the minimum wage and overtime provisions of the Washington Minimum Wage Act if:

(a) Their primary duty is of one of the following:

(i) Applying systems analysis techniques and procedures to determine hardware, software, or system functional specifications for any user of such services; or

(ii) Following user or system design specifications to design, develop, document, analyze, create, test or modify any computer system, application or program, including prototypes; or

(iii) Designing, documenting, testing, creating or modifying computer systems, applications or programs for machine operation systems; or

(iv) Any combination of the above primary duties whose performance requires the same skill level; and

(b) Their rate of pay is at least $27.63 per hour.

(2) This professional exemption only applies to highly skilled employees who:

(a) Possess a high degree of theoretical knowledge and understanding of computer system analysis, programming and software engineering; and

(b) Have the ability to practically apply that theoretical knowledge and understanding to highly specialized computer fields; and

(c) Generally attain the necessary level of expertise and skill to qualify for an exemption through a combination of education and experience in the field; and

(d) Consistently exercise discretion and judgment in the application of their special knowledge as opposed to performing purely mechanical or routine tasks; and

(e) Engage in work that is predominantly intellectual and inherently varied in character as opposed to work that is routinely mental, manual, mechanical, or physical.

(3) While many employees who qualify for this exemption hold a bachelor's or higher degree, no degree is required for this exemption.

(4) This professional exemption does not apply to:

(a) Trainees or employees in entry level positions learning to become proficient in computer systems analysis, programming and software engineering; or

(b) Employees in computer systems analysis, programming and software engineering positions who have not attained a level of skill and expertise which allows them to generally work independently and without close supervision; or

(c) Employees engaged in the operation of computers; or

(d) Employees engaged in the manufacture, repair or maintenance of computer hardware and related equipment; or

(e) Employees covered by a collective bargaining agreement.