Download Adobe Reader Email Page Last Reviewed: 2017-11-15 This can have a significant impact on their legal rights. Frequently asked questions about per diem rates and related topics. The post-2004 regulation, which excludes duplicative and confusing language included in the pre-2004 statute, provides clarity while maintaining the legal standard. Call us for help. Professional Employee section This section helps you in determining whether a particular employee who performs work in a recognized professional field (e.g., law, medicine, science, music, art, teaching) meets the duties tests for exemption from the minimum wage and overtime pay requirements of the FLSA. 2004). If needed, check additional job duties tests required by the employees roles as in the case of the computer professional. - Review the Fact Sheet The term matters of significance refers to the level of importance or consequence of the work performed. More examples of job duties that are not likely to qualify for the FLSA computer exemption: Do not assume that because an employee works in IT he is automatically exempt from FLSA coverage. Definitely recommend! Employers owe one hour of pay for each meal or rest break that an employee should have received.7. The Grills court also noted that computer professionals who were able to resolve a technical matter during a phone call are less likely to be exempt; the plaintiff Grills took weeks, or longer, to resolve issues. Id. Regardless of the type of duties performed, an employee cannot be an exempt Computer Professional under the FLSA unless the employees compensation is equal to or greater than certain minimum requirements. Note that the wage rates used in the statute have not been amended yet to account for annual inflation rates. Professional Exemption Test Is the employee's primary duty: Computer Professional Exemption - The Law in California Its important to check each employee based on the FLSA exemption tests. Disclaimer: Past results do not guarantee future results. We and the third parties that provide content, functionality, or business services on our website may use cookies to collect information about your browsing activities in order to provide you with more relevant content and promotional materials, on and off the website, and help us understand your interests and improve the website. hbspt.cta._relativeUrls=true;hbspt.cta.load(442426, '95503011-c23b-46b7-82b7-c4405870dbc1', {"useNewLoader":"true","region":"na1"}); Fuse Workforce Management 2023 | Privacy Policy, FLSA Computer Exemption: How to Determine if Employees Qualify. F3d 979 (7th Cir. The FLSA computer exemption does not include workers who deal with the repair of computer equipment or hardware. Cal., Oct. 4, 2013); see also Patel v.Nike Retail Services, 2016 U.S. Dist. In this regard, the court noted that although the consultants provided weekly status reports to Lawson project managers on projects to which they were assigned, there was no evidence of day-to-day supervision of their work by the project managers. In making this distinction, courts have distinguished between, on the one hand, employees who merely perform predetermined specifications in [a] system design created by others, and, on the other hand, employees whose technical duties involve the consistent exercise of discretion and judgment in its performance.. 29 C.F.R. SUMMARY: The Department of Labor is updating and revising the regulations issued under the Fair Labor Standards Act implementing the exemptions from minimum wage and overtime pay requirements for executive, administrative, professional, outside sales, and computer employees. Kyle D. Smith A California Labor & Employment Attorney Attorney at Law Updated February 16, 2023 Reading Time 4 Minutes Very helpful with any questions and concerns and I can't thank them enough for the experience I had. Symbols refer to GT's office structure, which is detailed on the Disclosures page. To determine whether the fee payment meets the minimum salary level requirement, the test is to consider the time worked on the job and determine whether the payment is at a rate that would amount to at least $455 per week if the employee worked 40 hours. An IT technician responsible for installing and upgrading hardware and software on workstations, configuring desktops, checking cables, replacing parts, and troubleshooting Windows problems would therefore not qualify as a Computer Professional, even though the job necessarily requires some degree of specialized computer knowledge. the application of systems analysis techniques and procedures, the design, development, testing, or modification of computer systems or programs, and. Computer professionals in California, to the extent they are properly classified as exempt, are not covered by the following employment laws and rights: For example, a computer professional is not entitled to a minimum hourly rate that applies to every workweek. Cory does not pass this test. The computer professional employee exemption under the Fair Labor Standards Act (FLSA) does not apply to a health care employers information technology (IT) support specialists, who also are not covered by the administrative exemption, according to a U.S. Department of Labor (DOL) opinion letter. The DOLs exempt duties typically include these roles: make this mistake. According to what youve learned above, is the following person entitled to overtime pay (FLSA nonexempt)? This amount is above the exempt threshold of $455 per week. applying systems analysis techniques and procedures, including consulting with users, to determine . California Labor & Employment Attorney Wage and Hour Laws Computer Professional Exemption. Computer employees are not the only California workers that are exempt from the above laws. Substantive revisions made after 01/1 9 /2021 are noted at the end of affected provisions below. ; and (2) what is the level or nature of the work performed? FLSA Exemption Test | UpCounsel 2023 541.202(b). including independent entities located within the boundaries of the key city and the listed counties In Renfro v. Indiana Michigan Power Company, 497 F.3d 573, 577 (6th Cir. $('.container-footer').first().hide(); PDF FAIR LABOR STANDARDS ACT (FLSA) QUESTIONNAIRE - Louisiana 2009). Lets look again at the tests to qualify for the FLSA computer exemption. Specifically, the courts generally require that to fall within the computer professional exemption an employees primary duty must require theoretical and practical application or highly-specialized knowledge in computer systems analysis, programming and software engineering not merely highly-specialized knowledge of computers and software. Jackson v. McKesson Health Solutions LLC, 10 WH Cases 2d (BNA) 374 (D. Mass. Courts have found that lower level duties such as those weigh against a finding that an employee is exempt. 541 et seq.). The FLSA requires that most employees in the United States 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. Specifically, the court found that [p]laintiffs have submitted evidence showing that their primary duties were equivalent to those of help-desk employees, exempt [sic] from the FLSA's overtime provisions, while Defendant has submitted evidence showing that Plaintiffs performed high-level work as contemplated by the computer professional exemptions. Id. Ct. Nor is there a distinction placed upon whether the employee develops new technologies, or merely implements and maintains existing software. Related article: White-Collar Wrinkles, HR Magazine, December 2004. #block-googletagmanagerheader .field { padding-bottom:0 !important; } In addition to satisfying the salary ($455 per week) or hourly ($27.63 an hour) minimum to qualify for the computer employee exemption, the primary duties for this exemption must be any of the following: The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications. The specific level of educational attainment held by an employee is therefore irrelevant for determining exempt status, and the determinative factor is the job requirement and not the education in fact acquired by the employee. Dybach v. State of Fla. Dept of Corrections (11th Cir. As provided by the FLSA, the Department of Labor (DOL) enforces seven classes of potentially exempt workers: Executive Employees. If there is a difference or conflict though, employers are legally required to apply those laws that benefit the employee the most.9. 5 CFR Part 551 addresses pay administration under the FLSA and "contains the regulations, criteria, and conditions set forth by the OPM as prescribed by the Act, supplements and implements the Act, and must be read in conjunction with it." A Closer Look At FLSAs Computer Professional Exemption, Greenberg Traurigs Global Immigration & Compliance Practice Continues Employer-Focused Webinar Series in May, No Longer a Slap on the Wrist: OSHA Continues to Raise Its Maximum Penalty Amounts, Federal OSHA Emphasizes Heat-Related Illnesses and Injuries in the Workplace. The plaintiff, Ortega, holds multiple certificates in network administration and computer development; held the title of IT Manager and/or Network Administrator/Engineer II for a global corporation that employs more than 5,000 people around the world; and had duties consisting of analyzing, troubleshooting, and testing Bel Fuse's systems networks; and developing a back-up test database, creating a back-up software system and system upgrades. Id. Alternative Dispute Resolution in Divorce, Getting Government Contracts: Small Business Certification Services, Arbitration, Mediation & Alternative Dispute Resolution Attorneys, GCPC First Generation Law Student Scholarship. Starting a Business, Licensing & Compliance, Guidelines for Hiring or Firing Employees, Drug Testing Your Workforce Best Practices, For Employers of Uniformed Services Members, Employer Considerations For Government Contractors, Litigation vs. If you do, you could pay a fortune for unpaid wages and liquidated damages, not to mention all those attorney fees. In determining whether or not the FLSAs Computer Professional exemption applies to your employees, consult with an attorney about those employees specific job duties in order to decide how your employees should be classified. at 829. ]. Conclusion: Computer Cory is FLSA nonexempt (he is protected by FLSA coverage like overtime pay). Assist users in identifying hardware/software needs and provide advice regarding current options, policies and procedures. The term primary duty refers to the principal, main, major or most important duty that the employee performs. 29 C.F.R. ), Federal Identity, Credentials, & Access Management, FLSA Exemption Determination Checklist - Computer Employee Professional Exemption, Privately Owned Vehicle (POV) Mileage Reimbursement Rates, Presidential & Congressional Commissions, Boards or Small Agencies, Diversity, Equity, Inclusion and Accessibility. A Closer Look At FLSA's Computer Professional Exemption Work with competing vendors to determine the best selection based on price, technical functionality, durability, manufacturer support, manufacturer vision and position in the health care industry. .usa-footer .grid-container {padding-left: 30px!important;} Bohn v. Park City Group, Inc. (10th Cir. McLean, VA 22101, 2023 General Counsel, P.C. The regulation explains in subpart (d) that "the discretion and independent judgment exercised must be real and substantial, that is, they must be exercised with respect to matters of consequence." else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { An official website of the United States government. Finally, the exercise of discretion and independent judgment implies that the employee has authority to make an independent choice, free from immediate direction or supervision. 2004) 381 F.3d 574, Aguilar v. Association for Retarded Citizens (1991) 234 Cal.App.3d 21. computer employees working within particular software system design specifications. 2004). Supp., at 802 (Plaintiffs work, furthermore, was comprehensive in nature, and ranged from investigating problems, to considering possible solutions and implementing, in plaintiffs opinion, the best solution, and Paul v. One Touch Technologies Corp., at *4-6 (Cal. A Closer Look At FLSA's Computer Professional Exemption Keep in mind that state laws may differ from the regulations of the federal FLSA. These requirements apply to all of the subcategories of the professional exemption: the learned professional, the creative professional, the teaching professional and the computer professional. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); Mich. Power Co., decided by the 6th U.S. The FLSA determines whether a job is exempt or nonexempt as it relates to overtime obligations. IT support specialists are not exempt, DOL states, New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences. 2007), the plaintiffs were technical writers who developed procedures for maintaining their employers nuclear power plant equipment. 1988) that a project manager whose main job was to oversee the implementation of and conversion to employers billing software at all offices of her employers customers was covered under the administrative exemption. The determination of whether an employee exercises discretion and independent judgment is based on an evaluation of the totality of the facts involved in the particular employment situation. These functions under his job duties are complex and require high-level skills. Place an x in each box that applies to this position. 2011), the Seventh Circuit upheld a finding that the administrative exemption applied where the employee provided service and support to customers who bought her employers software, agreeing that the employee exercised discretion and independent judgment because when confronted with clients problem in using [her employers] software, [the employee determined] the nature of the problem and how to handle it. Finally, the Fifth Circuit held in Morgan v. CMS/Data Corp., Civ. These include the computer exemption, the administrative exemption, the . 29 C.F.R. California law says that workers not included in the overtime exemption can get paid time and a half when they work: In addition to unpaid wages, workers in a wage/hour lawsuit may receive compensation for any missed meal and rest breaks. temp_style.textContent = '.ms-rtestate-field > p:first-child.is-empty.d-none, .ms-rtestate-field > .fltter .is-empty.d-none, .ZWSC-cleaned.is-empty.d-none {display:block !important;}'; the documentation, creation, or modification of computer programs related to design software or computer hardware (or related equipment) for computer and machine operating systems. 2. Is the employee paid on a salary or fee basis of at least $455 per week ($913 per week beginning December 1, 2016)? In addition to setting certain minimum wage requirements, the Fair Labor Standards Act (FLSA), in most circumstances, requires employers to pay all non-exempt employees an overtime rate of one and one-half times the employees regular hourly rate for each hour the employees work in excess of forty hours per workweek. Search current federal contract opportunities and procurement notices. Nor does an employee lose the Computer Professional exemption simply because the employees job duties also include some non-specialized tasks, such as documentation or technical writing work. Is the worker employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field? 29 USC 213(a)(17); 29 CFR 541.400-402. The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Note that, if a Computer Professional is paid on an hourly basis, then the minimum weekly pay required in order for the employee to qualify for the exemption will be $1,105.20 . 2007). The employee must be compensated on a salary or fee basis at a rate of not less than $455 per week exclusive of board, lodging or other facilities;3 The application of any FLSA exemption is highly fact-specific; however, an information technology/computer staff employee may fit within the administrative exemption, whether or not the employee meets the computer professional exemption. The job duties test is a bit more complicated than the salary test. To qualify for the computer employee exemption, the following tests must be met: The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. 541.400(b) require that in order for an employee to qualify as an exempt computer professional, the employees primary duty must consist of the performance of any of the following duties, or any combination thereof, the performance of which requires the same level of skills: 1. Below is an overview of the computer professional duties test and key terms employers should know. The term discretion and independent judgment does not require that the decisions made by an employee have a finality that goes with unlimited authority and a complete absence of review. Applying the Fair Labor Standards Act (FLSA) exemption tests to determine who must be paid overtime is difficult. Similarly, a senior or lead computer programmer may manage two or more other programmers in a customarily recognized department or subdivision of the employer and may effective make recommendations as to the hiring, firing, advancement, promotion, or other changes of status of the other programmers, thus meeting the requirements for the executive exemption.29 CFR 541.402, State Laws Federal Laws Topics Articles Resources, FLSA Minimum Wage and Overtime Exemptions. Similarly, in Verkuilen v. Mediabank, at *4 (N.D. Ill. May 19, 2010), affd. The revision did not, however, change the fact that the administrative exemption regulations establish a two-part inquiry for determining whether an employee is exempt: (1) what type of work is performed by the employee? Need assistance with a specific HR issue? at *17. Additionally, other exemptions may also come into play regarding certain employees and should be considered before assigning FLSA status. 541.202(c). 3. To meet this requirement, an employee must perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment. , computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field are exempt from minimum wage and overtime pay provided they also meet the other tests for exemption like salary level. 541.400(b). A number of exemptions can apply to computer professionals and other I.T. The Sixth Circuit held that the technical writers were exempt as administrative employees. As of January 1, 2023, California employers must compensate their computer professional employees with an annual salary of $112,065.20 or more ($9,338.78 a month or $53.80 an hour) to be exempt from paying them overtime. The term as used in the regulations in subpart A of this part, moreover, implies that the person has the authority or power to make an independent choice, free from immediate direction or supervision and with respect to matters of significance. Allowances for lodging, meal and incidental costs while on official government travel. } PDF Exempt Worksheet - ThinkHR 541.700(a). Fact Sheet #17E:Exemption for Employees in Computer-Related Occupations FLSA Status: Exempt Non-Exempt .