personal attendant (IWC Order 5-2001)
"Personal attendant" includes babysitters and means any person employed by a nonprofit organization covered by IWC Order 5-2001 to supervise, feed or dress a child or person who by reason of advanced age, physical disability or mental deficiency needs supervision. The status of "personal attendant" shall apply when no significant amount of work other than the foregoing is required.
personal attendant (IWC Order 15-2001)
"Personal attendant" includes babysitters and means any person employed by a private householder or by any third party employer recognized in the healthcare industry to work in a private household, to supervise, feed, or dress a child or person who by reason of advanced age, physical disability, or mental deficiency needs supervision. The status of "personal attendant" shall apply when no significant amount of work other than the foregoing is required.
Work that is paid for according to the number of units turned out. A "piece rate" must be based on an ascertainable figure paid for completing a particular task or making a particular piece of goods. Examples of piece rate plans include the following:
- Automobile mechanics paid on a "book rate" (that is, a brake job, one hour and fifty minutes, tune-up, one hour, etc.) usually based upon a pre-set standard.
- Nurses paid on the basis of the number of procedures performed.
- Carpet layer paid by the yard of carpet laid.
- Technician paid by the number of telephones installed.
- Factory worker paid by the number of widgets completed.
- Carpenter paid by the linear foot on a framing job.
- Truck driver paid by the number of loads hauled.
See "piece rate."
primarily engaged in
Each of the exemptions - administrative, executive and professional - require that the employee be "primarily engaged in" the duties which meet the test for the exemption. The term "primarily engaged in" means that more than one-half of the employee's work time must be spent engaged in exempt work and differs substantially from the federal test which simply requires that the "primary duty" of the employee falls within the exempt duties.
A person employed in a professional capacity means any employee who meets all of the following requirements:
- 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
- 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:
- 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
- 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
- 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.
- Who customarily and regularly exercised discretion an independent judgment in the performance of duties set forth above.
- 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.
For the artistic professions, work in a "recognized field of artistic endeavor" includes such fields as music, writing, the theater, and the plastic and graphic arts.
The engaging in or exercising of a right that is protected by law. Some examples of "protected activity" under the Labor Code include:
- Filing or threatening to file a claim or complaint with the Labor Commissioner.
- Taking time off from work to serve on a jury or appear as a witness in court.
- Disclosing or discussing your wages.
- Using or attempting to use sick leave to attend to the illness of a child, parent, spouse, domestic partner, or child of the domestic partner of the employee.
- Engaging in political activity of your choice.
- For complaining about safety or health conditions or practices.