Best Ohio Overtime Wage Attorney Answer: If I work with computers at work but I am not a computer engineer or programmer, can my employer make me exempt from overtime pay? Is there an overtime exemption for employees with computer-related jobs? Who qualifies for the computer exemption? What is a “primary” duty for purposes of the computer exemption?
The Fair Labor Standards Act (“FLSA“) requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular hourly rates for hours worked beyond 40 per week. The FLSA provides that employers who violate the law are liable to the aggrieved employees for their back wages and an equal amount in liquidated damages, plus reasonable attorney’s fees and costs. Liquidated damages are paid directly to the affected employees.
Certain employees are exempt from overtime pay under the FLSA. One such exemption is the Computer Employee exemption. To qualify for the computer employee exemption, the following tests must be met as explained by the Sixth Circuit Court of Appeals (Ohio) in Martin v. Ind. Mich. Power Co.:
- The employee must be compensated either on a salary or fee basis at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
- The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;
- The employee’s primary duty must consist of:
1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
2) 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;
3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
4) A combination of the aforementioned duties, the performance of which requires the same level of skills.
Importantly, the computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment.
Moreover, the test for the computer employee exemption depends on the determination of the employee’s “primary duty.” “Primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.
Let’s look at the overtime decision by the Sixth Circuit Court of Appeal in Martin:
The district court concluded that Martin was a computer professional: “Martin falls within the exemption for a professional employed in a computer-related occupation: there is no genuine dispute that his work requires highly-specialized knowledge of computers and software, and the evidence shows that he customarily and regularly exercises discretion and independent judgment in his work.” The district court made an understandable mistake, one that arises from the common perception that all jobs involving computers are necessarily highly complex and require exceptional expertise. However, the regulations provide that an employee’s primary duty must require “theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering” not merely “highly-specialized knowledge of computers and software.” This is an important difference. The former is a narrower class of jobs that requires a different level of knowledge and training than the latter. Further, it is a distinction which will only become more relevant as the range of computer-related jobs continues to broaden.
Martin does not do computer programming or software engineering; nor does he perform systems analysis, which involves making actual, analytical decisions about how Cook’s computer network should function. Rather, Martin’s tasks—installing and upgrading hardware and software on workstations, configuring desktops, checking cables, replacing parts, and trouble-shooting Windows problems—are all performed to predetermined specifications in the system design created by others. As Martin testified, he is provided the standard “desktop” for installation on the computers he configures, but he is not involved in determining what the desktop should look like. Thornburg explained, as we noted above, that IT Support is “a maintenance organization that takes care of computer systems.” …
AEP selectively identifies certain words from this regulation—particularly “consulting with users” and “testing”—and applies them out of context. There is simply no evidence that Martin “consults with users, to determine hardware, software, or system functional specifications.” Martin “consults with users” for purposes of repair and user support, not to determine what “hardware, software, or system functional specifications” the Cook facility will employ, as a systems analyst might. Likewise, when Martin does “testing,” he is testing things to figure out what is wrong with a workstation, printer, or piece of cable so that he can restore it to working order. He is not doing the type of testing that is involved in creating a system, determining the desired settings for a system, or otherwise substantively affecting the system. Indeed, he is merely ensuring that the particular machine is working properly according to the specifications designed and tested by other Cook employees. Maintaining the computer system within the predetermined parameters does not require “theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming, and software engineering.” So, at the end of the day, your boss cannot say that simply because you work in IT or work with computers, you can work over 40 hours without getting paid overtime at a rate of time and a half.
If you believe that your employer is not paying you all of your wages for all of your lawfully earned overtime compensation at a rate of one and half times your normal wages as requires under the Federal Fair Labor Standards Act or Ohio Minimum Fair Wage Standards laws or you are an nonexempt employee that has been misclassified as exempt or independent contractor, contact the attorneys at The Spitz Law Firm today for a free and confidential initial consultation. The wage and hour lawyers at The Spitz Law Firm will provide you with the best options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call 866-797-6040.
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