Attachment B

ADMINISTRATIVE, EXECUTIVE, AND PROFESSIONAL EMPLOYEES proposed by Commissioner Bill Dombrowski

Revise the Wage Orders to read as follows:

Sections 3 through 12 of this Order shall not apply to persons employed in administrative, executive or professional capacities. However, no person shall be considered to be employed in an administrative, executive or professional capacity unless the person is primarily engaged in the duties which meet the test of the exemption and earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment. For the purposes of this section, "Full-time employment" means employment in which an employee is employed for forty (40) hours per week. For purposes of this section, "primarily" means more than one-half (1/2) of the employee's work time.

The following requirements shall apply in determining whether an employee’s duties meet the test of the exemption:

(A) The employee’s duties and responsibilities must satisfy the "long test" requirements for the applicable exemption under the Fair Labor Standards Act and pertinent regulations at 29 C.F.R. 541.1(a)(b)(c)(d), 541.2(a)(b)(c), and 541.3(a)(b)(c) (pertaining to executive, administrative and professional employees, respectively), provided, however, that pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subsection unless they individually meet the criteria established for exemption as executive or administrative employees; and

(B) More than 50% of the employee’s working time must be spent engaged in exempt work. For purposes of this requirement, the activities constituting exempt work and non-exempt work shall be construed in the same manner as such terms are construed for purposes of the Fair Labor Standards Act.

The work actually performed by the employee during the course of the work week must be examined and the amount of time the employee spends on such work, together with the employer’s expectations and the realistic requirements of the job, shall be considered in determining whether the employee is primarily engaged in exempt work.

Time devoted by an employee to exempt work is exempt time for purposes of determining whether that employee is primarily engaged in managerial work even if the employee is simultaneously or incidentally performing other work, such as production, that might be characterized as non-exempt. If an employee fulfills all of the requirements for the exemption referenced in paragraph (A), it shall be presumed that the activity is exempt, unless the facts prove to the contrary.

ADMINISTRATIVE, EXECUTIVE, AND PROFESSIONAL EMPLOYEES proposed by Commissionr Barry Broad

Revise the Wage Orders to read as follows:

Provisions of Sections 3 through 12 shall not apply to persons employed in administrative, executive, or professional capacities. No person shall be considered to be employed in an administrative, executive, or professional capacity unless the person is primarily engaged in the duties which meet the test of the exemption and earns a monthly salary equivalent to no less than two times the state minimum wage for full time employment. The duties which meet the test of the exemption are one of the following set of conditions:

(A) The employee is engaged in work which is primarily intellectual, managerial, or creative, and which requires exercise of discretion and independent judgment, or

(B) The employee is licensed or certified by the State of California and is engaged in the practice of one of the following recognized professions: law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting, or is engaged in an occupation commonly recognized as a learned or artistic profession; provided, however, that pharmacists employed to engage in the practice of pharmacy, and registered nurses employed to engage in the practice of nursing, shall not be considered exempt professional employees, nor shall they be considered exempt from coverage for the purposes of this subsection unless they individually meet the criteria established for exemption as executive or administrative employees.

(C) For the purposes of this section, "full-time employment" means employment in which an employee is employed for forty 40 hours per week.

(D) For the purposes of this section, "primarily" means more than one-half (1/2) of the employee’s work time.