312 | 2025 Cal-Peculiarities ©2025 Seyfarth Shaw LLP www.seyfarth.com 216 Overtime Exemption for Computer Software Employees, https://www.dir.ca.gov/oprl/ComputerSoftware.htm#:~:text=In%20accordance%20with%20Labor%20Code,from%20%24112%2C065.20% 20to%20%24115%2C763.35%20effective (last visited June 16, 2025). 217 See IWC Wage Orders § 1(A)(3)(g). 218 29 C.F.R. § 541.5. 219 29 C.F.R. § 541.505(b). 220 Lab. Code § 1171. 221 IWC Wage Order 4, §§ 1(C), 2(M). 222 Ramirez v. Yosemite Water Co., 20 Cal. 4th 785, 798 (1999). 223 See Espinoza v. Warehouse Demo Servs.,, Inc., 86 Cal. App. 5th 1184 (2022). 224 Id. 225 29 CFR § 779.412. 226 IWC Wage Orders 4 and 7, § 3(D) (overtime pay requirements do not apply to employees whose earnings exceed one and one-half times the minimum wage if more than one-half of those earnings are commissions). 227 See Koehl v. Verio, Inc., 142 Cal. App. 4th 1313, 1329-37 (2006) (employer may legally advance commissions to employees before they meet all conditions for payment). The DLSE agrees: “The stipulated sum may not be considered to be a draw against commissions if the circumstances show that it was simply paid as a salary; but if the draw actually functions as an integral part of a true commission basis of payment, then the actual commissions paid, even though less than the draw, will qualify as compensation which represents commissions on the sale of good or services.” DLSE Enforcement Policies and Interpretations Manual, § 50.6.4.2 (June 2002). The DLSE Manual also states: “Consistent commission earnings below, at, or near the draw are indicative of a commission plan that is not bona fide.” Id. § 50.6.1(4). 228 Peabody v. Time Warner Cable, Inc., 59 Cal. 4th 66 (2014). 229 https://www.dir.ca.gov/dlse/opinions/2016-10-11.pdf (last visited June 16, 2025). 230 CBA-related exemptions also apply to sick-leave requirements, see § 2.14, and to meal-break requirements, see § 7.9. There are other CBA-related exemptions as well: Lab. Code § 226.75(f)(2) (rest breaks for employees in safety-sensitive positions at petroleum facilities), 1198.5(q)(4) (inspection of personnel records), 2810.5(c)(3) (written notice of employment information), and 2699.6(a) (PAGA claims for construction employees). 231 Lab. Code § 514. 232 Vranish v. Exxon Mobil Corp., 223 Cal. App. 4th 103, 107 (2014) (upholding summary judgment for the employer) (California Legislature allowed unionized employers to contract for not only the rate of overtime pay, but also when overtime pay will begin). See also Curtis v. Irwin Indus. Inc., 913 F.3d 1146, 1154 (9th Cir. 2019) (following Vranish as correctly interpreting California law as to whether the section 514 CBA overtime exemption applies, absent convincing evidence that the California Supreme Court would reject that interpretation). 233 E.g., Sarmiento v. Sealy, Inc., 2019 WL 3059932, at *6-9 (N.D. Cal. July 12, 2019); Huffman v. Pac. Gateway Concessions LLC, 2019 WL 2563133, at *4-6 (N.D. Cal. June 21, 2019). 234 Sarmiento, 2019 WL 3059932, at *7 (quoting Huffman, 2019 WL 2563133, at *5). 235 Lab. Code §§ 5, 13. 236 See generally Wage Order 9 (Transportation Industry) § 3(L) (overtime provisions do not apply to employees whose hours of service are regulated by the U.S. Department of Transportation or by Title 13 of the California Code of Regulations, regulating hours of drivers). 237 Fitzgerald v. Skywest Airlines, 155 Cal. App. 4th 411, 418 (2007); see also Seitz v. Int'l Bhd. of Teamsters, 2021 WL 5577015, at *2 (N.D. Cal. Nov. 30, 2021) (holding that claims under sections 222 and 223 of the California Labor Code were preempted by the RLA because “to determine whether [Defendant] withheld wages owed to [Plaintiff]….would require an interpretation of the collective bargaining agreement, and therefore ‘must be resolved through grievance and arbitration’”) (quoting Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 253 (1994)). 238 Ward v. United Airlines, 9 Cal. 5th 732, 746 (2020)); accord Gunther v. Alaska Airlines, Inc., 72 Cal. App. 5th 334, 340 (2021) (holding that flight attendants covered by a collective bargaining agreement negotiated persuant to the RLA were nonetheless entitled to Section 226 compliant wage statements); see also Ward v. United Airlines, 986 F.3d 1234, 1244 (9th Cir. 2021) (“we conclude that plaintiffs' claims under California Labor Code § 226 are not preempted by the RLA”). 239 Lab. Code §§ 860-862. 240 Lab. Code § 226.7(b). 241 Lab. Code § 512(a) (preempted by Int'l Bhd. of Teamsters, Loc. 2785 v. Fed. Motor Carrier Safety Admin., 986 F.3d 841, 857–58 (9th Cir. 2021), from applying to drivers of property-carrying commercial motor vehicles). 242 DLSE Enforcement Policies and Interpretations Manual § 45.2.2 (2002) (“Labor Code § 512, requiring an employer to provide a meal period, does not exclude any class of employee. Consequently, it would appear that exempt employees are also entitled to meal periods in accordance with that section. However, the premium pay provided in Labor Code § 226.7 for failure to provide the meal period only applies if the meal period is required by the applicable IWC Order. The IWC Orders specifically excluded exempt employees from the coverage of the IWC meal period requirement. Thus, no premium pay may be imposed on a employer who fails to provide a meal period to an exempt employee.”). 243 IWC Wage Orders § 7(A)(3) (requiring that the employer keep accurate “[t]ime records showing when the employee begins and ends each work period. Meal periods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.”).
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