Computer Employee Exemption – FLSA


The Fair Labor Standards Act (FLSA) exempts from its minimum wage and overtime standards employees who qualify as computer employees. 29 USC 213(a)(17); 29 CFR 541.400-402 To qualify for the computer employee exemption, all of the following tests must be met:

  • Earn not less than:
    • $455 per week on a salary or fee basis (Beginning December 1, 2016, employers will be required to pay employees qualifying for this exemption not less than $913 per week; starting on January 1, 2020, this minimum earnings amount will change every three years according to a formula set forth in federal regulation changes issued on May 17, 2016) or
    • $27.63 on an hourly basis;
  • have the primary duty that consist of:
    • applying systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;
    • designing, developing, documenting, analyzing, creating, testing, or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications;
    • designing, documenting, testing, creating, or modifying computer programs related to machine operating systems; or
    • performing a combination of the above-listed duties.

29 CFR 541.400(b)


Definitions




Included Employees

The computer employee exemption includes, but is not limited to, computer systems analysts, computer programmers, software engineers or other similarly skilled workers that meet the above listed criteria. 29 CFR 541.400(a)



Excluded Employees

The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Nor does it include employees whose work is highly dependent upon the use of computers and computer software programs but whose primary duties are not the same as those listed above. 29 CFR 541.401



Concurrent Exemptions

Employees who qualify under the computer employee exemption may also qualify for the executive or administrative employee exemption depending on the scope of their duties. For example, a systems analysts and computer programmers may meet the duties requirements for the administrative exemption if their primary duty includes planning, scheduling, and coordinating activities to solve complex business, scientific, or engineering problems. 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


Related Topics