Barkan Meizlish , May 14, 2015
Before Congress amended the Fair Labor Standards Act (“FLSA”) in 1996 to include the exemption for “Computer Professionals,” employees working as programmers, computer systems analysts, software engineers, or other similar positions were considered exempt from the FLSA’s minimum wage and overtime requirements if they met the “white-collar” exemption requirements under 29 U.S.C. 213(a)(1). The major distinction is that the computer professional exemption can include both salaried and hourly employees, whereas the white-collar exemptions require a “salary basis” test to qualify.
Employees must meet two tests under the computer professionals exemption. First, the employee must either be compensated at a rate not less than $455 per week (if salary), or at a rate not less than $27.63 an hour (if an hourly employee). Second, the employee’s primary duty must be:
(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
(B) 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
(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems.
As provided by the regulations interpreting the FLSA, however, this exemption does not include employees engaged in the manufacture or repair of computer equipment. 29 C.F.R. 541.400. As employers become more tech-savvy and the demand for IT jobs grows, it is important to note this distinction between “help-desk” employees, who generally do not qualify for this exemption, and highly-specialized employees providing critical software development and support, who are more likely to be exempt.Source: Employment Law Upodate: Tech Support – The FLSA’s Specialized Exemption (Oct. 23, 2014), http://www.jdsupra.com/legalnews/employment-law-update-tech-support-th-74121/.
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