Computer employees should be aware that the Fair Labor Standards Act (“FLSA”) requires that most employees in the U.S. be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one-half the regular rate of pay for all hours worked over 40 hours in a workweek.

The FLSA, however, provides an exemption from both minimum wage and overtime pay for computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field who meet certain tests regarding their job duties and who are paid at least the standard salary level on a salary basis, or paid on an hourly basis at a rate not less than $27.63 an hour.

It is important to note that job titles do not determine exemption status. For the employer to claim this exemption, an employee’s specific job duties and compensation must meet all the requirements of the Department of Labor’s regulations.

Requirements to Qualify for the Computer Employee Exemption

To qualify for the computer employee exemption, the employer must ensure all the following requirements are met:

• The employee must be compensated either on a salary or fee basis at a rate not less than the standard salary level required by 29 CFR 541.600 or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
• The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the following primary duties:*

• • • The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
    • 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;
    • The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
    • A combination of these duties, the performance of which requires the same level of skill.

Computer Employee Exemption: What’s Not Included

The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment.

Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in the primary duties test described above, are also not exempt under the computer employee exemption.

*Primary duty means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the whole character of the employee’s job.

Source: U.S. Department of Labor, Wage and Hour Division, Fact Sheet 17E.

Have You Been Wrongfully Denied Overtime as a Computer Employee?

If you believe you have been wrongfully denied overtime by your employer, Kehoe Law Firm is here to help. Our experienced attorneys are dedicated to protecting workers’ rights. For a free, no-obligation evaluation of potential legal claims, send us a message or contact Michael Yarnoff, Esq., (215) 792-6676, Ext. 804, [email protected], [email protected]. 

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