Under-The-Radar Exemption for Computer Employees Receives Heightened Attention

frankD-BioBy Francesco DeLuca | The Fair Labor Standards Act (FLSA) contains minimum wage and overtime requirements, however, some employees are “exempt” from these requirements.  Many employers are familiar with the commonplace “administrative,” “executive,” and “professional” exemptions.  Though an employer should understand these exemptions so as to avoid costly lawsuits, employers in the technology sector should also be aware of an under-the-radar exemption for computer employees that has received heightened attention from courts and lawyers over the past year.

To qualify for the computer employee exemption, an employee must perform a computer-related job.  This exemption applies to “computer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field.”  Take, for example, Haluska v. Advent Communications, Inc., where the court applied the exemption to a technician who installed or repaired, trained customers to use, and programmed phone systems. However, the exemption does not apply to those employees who only manufacture or repair computers or whose work depends heavily on computers (such as engineers and drafters).  For instance, in Langolis v. Stratasys, Inc., the court held that a technician who merely installed or repaired printers and trained customers on their use did not fit under the exemption.

As is true of more widely known FLSA exemptions, whether an employee fits into one of the exempt categories of computer employees does not depend on the employee’s job title.  Instead, an employee’s eligibility for the exemption turns on the employee’s “primary duty.”  In this context, an employee must conduct systems analysis, develop or design programs, or perform similar technical work.  A detailed job description may help define an employee’s primary duty, but the most important consideration is the work that the employee actually performs.

Additionally, computer employees are exempt only if they take home a certain pay.  If the employees are salaried, they—like other FLSA-exempt employees—must be paid at least $455 per week.  However, unlike the other exemptions, the computer-employees exemption is not limited to salaried employees.  Hourly employees may qualify if they make at least $27.63 an hour.

In the end, whether an employee is an exempt computer professional depends on the facts of his or her employment.  For questions about an employee’s status as an exempt employee under the FLSA, contact  Roger Hood.