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 employee’s regular hourly rate for each hour the employees work in excess of forty hours per workweek. See 29 U.S.C. § 207(a)(1).
For employers in most non-agricultural industries, the relevant exemptions are found in Section 13(a)(1) of the FLSA, codified at 29 U.S.C.A. § 213(a)(1) which provides that the FLSA’s minimum wage and overtime provisions do not apply to “any employee employed in a bona fide executive, administrative, or professional capacity … or in the capacity of outside salesman.” In 1996, however, Congress amended the FLSA to include a specific exemption, at Section 13(a)(17), for “Computer Professionals.” Previously, computer professionals had been considered exempt under section 13(a)(1), along with the exemption for executives, administrators, and professionals, but under Section 13(a)(17) a specific exemption was provided for any “computer systems analyst, computer programmer, software engineer, or other similarly skilled worker” who had a primary job function involving:
- 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; [or]
- The design, documentation, testing, creation or modification of computer programs related to machine operating systems;
The federal regulations are clear that Section 13(a)(1) still applies to computer professionals, as “[c]omputer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field are eligible for exemption as professionals under section 13(a)(1) of the Act and under section 13(a)(17) of the Act.” 29 C.F.R. § 541.400(a).
Compensation Requirements
Regardless of the type of duties performed, an employee cannot be an exempt Computer Professional under the FLSA unless the employee’s compensation is equal to or greater than certain minimum requirements. A Computer Professional can be paid on a salaried or hourly basis, but must receive compensation equal to or greater than:
- $455 per week if paid on a salary basis (annual salary of $23,660); or,
- $27.63 per hour, if paid for each hour worked.
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, based on a 40-hour workweek – a much higher amount than the minimum $455 per a week which is required for a Computer Professional that is paid on a salaried basis.
Job Requirements
Regardless of whether an employee is paid on a salaried or hourly basis, if the minimum compensations requirements are met then an employee will be exempt from the FLSA’s overtime requirements if the employee’s job duties meet the requirements prescribed in 29 C.F.R. § 541.400(b). This requires that an employee’s “primary duties” consist of the performance of any of the following duties, or any combination thereof:
- 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; [or]
- The design, documentation, testing, creation or modification of computer programs related to machine operating systems[.]
Unlike certain other categories of exemptions under the FLSA, there is no requirement that Computer Professional hold any specific degrees or certifications. Although Computer Professionals are generally understood to be employees with a certain degree of expertise in their field, the Federal Regulations specifically acknowledge that “[w]hile such employees commonly have a bachelor’s or higher degree, no particular academic degree is required for this exemption.” 29 C.F.R. § 541.303(c). 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. Dep’t of Corrections (11th Cir. 1991).
The Computer Professional exemption is not available, however, to an employee whose job ‘merely’ requires “highly specialized knowledge of computers and software.” Instead, in order to qualify for the exemption, an employee’s job duties must meet a higher standard, requiring ‘the theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering.’
It is not the specific description of an employee’s job duties that determines whether the Computer Professional exemption applies, but rather whether the work performed is of a “highly-specialized” character. Remember, that an employee’s job duties “can be described as ‘consulting,’ ‘analysis,’ or ‘testing’ relating to computers does not mean that [the employee] falls within the ambit of a provision that is designed to exempt computer programmers, network designers, and software developers.” Hunter v. Sprint Corp., 453 F. Supp. 2d 44, 52 (D.D.C. 2006).
The Computer Professional exemption therefore does not include employees whose job duties that fall within the ambit of “help desk” services, or employees whose primary duty is to provide troubleshooting support. 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. Martin v. Indiana Michigan Power Co. (6th Cir. 2004). 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.”
Contrary to the arguments advanced by some FLSA plaintiffs, however, an employee does not have to “write code” in order to qualify for the Computer Professional exemption. Whether an employee creates or modifies source code is immaterial to the application of the Computer Employee exemption. Young v. Cerner Corp. (W.D. Mo. 2007). Nor is there a distinction placed upon whether the employee develops “new” technologies, or merely implements and maintains existing software. Chicca v. St. Luke’s Episcopal Health Sys. (S.D. Tex. 2012).
Importantly, the Computer Professional exemption is not inapplicable simply because an employee is “given some direction” with regards to how the analysis or evaluation of a computer system is to be performed, so long as the employee is still required to apply some of his or her own analysis and judgment in resolving problems. Nor does an employee lose the Computer Professional exemption simply because the employee’s job duties also include some non-specialized tasks, such as documentation or technical writing work. Bohn v. Park City Group, Inc. (10th Cir. 1996).
How Should Your Employees be Classified?
Employers who believe that some of their employees may qualify for the Computer Professional exemption should proceed with caution before classifying an employee as exempt under the FLSA. As with any FLSA exemption, it is the employer’s responsibility to prove, by “clear and convincing evidence,” that an employee they have classified as exempt does in fact fall within one of the enumerated exemptions of the FLSA. Desmond v. PNGI Charles Town Gaming, L.L.C. (4th Cir. 2009). In determining whether or not the FLSA’s 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.