Under the Fair Labor Standards Act (FLSA) employees are presumed entitled to overtime pay. That is, employees are entitled to receive one and one half their regular rate of pay for every hour worked over 40 in each workweek. This is true whether or not the employee is “salaried”.
There are however certain exemptions to the overtime law. These exemptions are based on the particular job duties of the employee; not on whether or not the employee is paid hourly or is salaried. Courts routinely hold these exemptions are to be construed liberally in favor of the employee in determining whether an employee is in fact exempt from overtime pay.
One of these exemptions is the “computer professional” exemption.
In order for an employer to classify an employee exempt as a “computer professional”; the employee must meet both a compensation and job duties test.
The compensation test
In order to meet the compensation test, the employer must be able to show that the employee either received:
1. A minimum of $455.00 per week if salaried OR 2. A pay rate of $27.63 per hour if paid hourly
If an employee does not receive these minimum amounts in pay; then the exemption will not apply.
Even if the employee meets the compensation test, he must also meet the job duties test in order to be exempt.
The job duties test
When looking at the “job duties” test, the court determines what the employees primary duty involves. The term “primary duty” means the employee’s “principal, main, major or most important duty.” 29 C.F.R. § 541.700
In order to meet the job duties test, an employer must show the employee is a “computer systems analyst, computer programmer, software engineer, or other similarly skilled worker” whose primary duty involves:
1. The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
2. The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; [or]
3. The design, documentation, testing, creation or modification of computer programs related to machine operating systems;
It’s important to note, the employee’s job title does not determine if the job duties test has been satisfied; it is the actual job duties performed which determine if the employee is exempt from the overtime requirements of the FLSA.
Just because an employee works in “I.T.” does not mean they are exempt.
For the computer professional exemption to apply, an employee’s primary duty must require ‘theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering’ not merely ‘highly-specialized knowledge of computers and software.’ Chicca v. St. Lukes Episcopal Health Sys., 858 F. Supp. 2d 777, 784 (S.D. Tex. 2012)
In other words, an individual who simply assists in setting up computers, installing software, or connecting computers to an already existing network; most likely will not fit the exemption if their job duties do not extend past these types of activities.
Factors considered by the courts in determining whether an employee fit the exemption include, but are not limited to:
• the volume of data and the number of users the employee supports;
• the type and complexity of the problems handled by the employe;
• the layers of assistance below the employee to handle lower-level or simple problems, including whether there was a helpdesk below the employee to handle routine issues;
• the skill level of the employee, including certifications held, and the relevance and importance of those skills and certifications in the execution of the job;
• the level of initiative or creativity used in the execution of their job;
• the priority of the employee’s work relative to the overall work of the company.
Sethi v. Narod, 2013 U.S. Dist. LEXIS 141485, 42-43 (E.D.N.Y. Sept. 30, 2013)
The sixth circuit has held an employee will NOT be exempt if they do not engage in computer programming, software engineering, or perform systems analysis.
“These job duties involve making actual, analytical decisions about how a computer network should function. Installing and upgrading hardware and software on workstations, configuring desktops, checking cables, replacing parts, and troubleshooting problems are not job duties which would fall under the exemption as they are all performed to predetermined specifications in a system design created by others.” Martin v. Ind. Mich. Power Co., 381 F.3d 574, 580 (6th Cir. Mich. 2004)
Other courts have followed the lead of the sixth circuit in this approach. (Systems analysis involves making actual, analytical decisions about how a computer network should function.” Karna v. BP Corp. N. Am., 2013 U.S. Dist. LEXIS 37517, 50 (S.D. Tex. Mar. 19, 2013)) (The mere fact an employee performs some tasks considered “consulting,” “analysis,” or “testing” relating to computers does not mean they fall within the ambit of a provision designed to exempt computer programmers, network designers, and software developers. Hunter v. Sprint Corp., 453 F. Supp. 2d 44, 52 (D.D.C. 2006))
Despite a relatively small amount of case law interpreting the “computer professional” exemption; it is clear one of the most important factors to consider is whether an employee is performing “help desk” or support type of job duties or actually performing work programming, developing software, or designing/creating computer networks.
There is no doubt each case will require a detailed look into the particular job duties the employee actually performed in determining whether the exemption applies.