California Technical Writers: Exempt vs. Non-exempt

If you’re a technical writer in California, you should know about an amendment to the labor code that requires employers to classify us as non-exempt employees. Non-exempt means, among other things, that you are an hourly employee with a time card. So far, only a handful of companies have reclassified their writers, but considering that the labor code stipulates, in no uncertain terms, that tech writers are non-exempt, we have to assume that many more companies will follow.

The question is: do technical writers WANT to be classified as hourly employees? Is punching in and punching out even realistic for writing professionals who work closely with engineers and project managers who are not on the clock?

The small sample of writers with whom I’ve spoken abhor the amendment and are deeply unhappy with the new classification. As if technical writers don’t already have trouble getting respect in the computer industry, being placed in the non-exempt category of workers implies that we aren’t professionals.

According to the revised labor code, we are no longer employees whose “work … is intellectual or creative and that requires the exercise of discretion and independent judgment.” We aren’t “primarily engaged in duties that consist of … The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs”, nor are we “highly skilled and … proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, or software engineering.”

Certainly, being non-exempt isn’t all bad. You’ll no longer be working for free if your project requires you to stay in the office for 70 hours a week. But your boss must approve of the overtime. And what happens during down times, between releases, when you’re ramping up and your hours are well below 70 or barely 40?

Many people believe that the amendment to the labor code is a reaction to the lawsuits brought by “incorrectly classified” employees whose work is NOT considered highly skilled who were forced to put in long hours doing rote tasks in the computer industry. A lawsuit filed by a Sun employee is probably one of the reasons the amendment calls out technical writers specifically as non-exempt.

But our work is not rote. Our work does require discretion, creativity, and higher learning. We aren’t simply transcribing specs written by engineers. We aren’t documenting how to set up your VCR. If this amendment does not suit the majority of technical writers in California, we need to do something. If we want to maintain our professional status, we need to protest this amendment.

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5 responses to “California Technical Writers: Exempt vs. Non-exempt

  1. Wow—this is a fascinating issue. I will be very curious to see how many writers get caught up in it, or how many companies subvert the amendment by reclassifying their writers, or some of them. I see new business cards in our future…

  2. Most senior tech writers in the Bay Area will probably not be impacted by this legislation.

    Exempt status will now depend on pay and skill level as I can see it from the text of AB 10:

    “Existing law exempts a professional employee in the computer software field from this
    overtime compensation requirement if the employee is primarily engaged in work that is intellectual or creative, the employee’s
    hourly rate of pay is not less than $36 [75,000 annually], and the employee meets other requirements.”

    How this legislation possibly answers the Suns’ lawsuit, when Suns tech writers were making upwards of 100 k already, I don’t know.

    • Thanks for your comment, Stacy. Unfortunately, the clause you quoted is negated by the writer-specific clause later in the document, which says, “none of the above applies if the employee is a writer.” So yes, we should be covered by the clause you quoted, and we were covered by it before paragraph (b)5 of AB 10 changed our status.

  3. Then a lot of us are in for job title changes in the future. Jefro’s right about a future boom in business card orders.

  4. I don’t understand. How are technical writers not “primarily engaged in duties that consist of … [t]he. . .documentation. . .of computer systems or programs”?

    Is there something else we’re supposed to be doing?

    Am I the only lab-rat out here documenting my little heart out while the rest of you are behind a one-way mirror watching and tossing back the M & M’s and chuckling throatily to each other, “Suck-ah. . .”?