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The Fair Labor Standards Act provides several exceptions to the overtime law, including exemptions for white collar employees, outside sales employees, independent contractors, and computer employees. Just as the white collar exemption has its own tests, there are certain requirements a computer employee must possess in order to be exempt.
Like employees exempt under the white collar exemption, exempt computer employees must be paid on a salary basis which amounts to at least $455 per week. In addition, however, computer employees who are paid an hourly rate may also be exempt, if they are paid at least $27.63 per hour.
Who exactly is a computer employee? Basically, anyone who is employed as a computer systems analyst, computer programmer, software engineer, or similarly skilled worker in the computer field, whose primary duty involves systems analysis or the design, development, analysis, creation, testing or modification of computer programs or systems. While this is a broad definition, it is also a highly technical one that often requires a complex analysis to determine whether or not an employee is exempt.
Computer professionals and high-tech employees are expanding into every industry and occupation. More and more employees are considered “computer professionals” by virtue of their education, training, and certification, or simply by the label their employer gives them, but they may not truly qualify as exempt from overtime. Employees who are commonly misclassified as exempt include computer technicians, customer training consultants, graphic designers, technical support and customer service employees, trainees and entry-level employees, and employees in computer-related occupations who have not yet acquired the skill and expertise to work independently without close supervision.
Another way computer professionals are commonly misclassified is when they are considered to be independent contractors when they are really functioning as employees. Computer professionals may be hired for a particular project, either directly or through an employment agency. Are these workers temporary employees, independent contractors, or regular employees, even if not permanently employed? There are many factors to consider here, including the length of time the worker is employed, and the independent control over the work that the worker is free to exercise.
This exemption is as highly technical and complex as the high-tech nature of the work itself. As a computer professional, you may indeed possess skills and training beyond the average worker, but this is no reason to let yourself be cheated out of overtime you may be entitled to. Contact an experienced labor and employment law attorney to determine whether or not you should be considered exempt from overtime.