PUBLICATIONS

The Department of Labor (DOL) has issued an opinion letter addressing an issue that many employers have faced - whether an employee who provides computer help desk support is exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). In this opinion letter (FLSA 2006-42, dated October 26, 2006), the DOL stated that, based upon the information submitted by the employer requesting the opinion, the position does not qualify for the administrative or computer employee exemption.

 

The FLSA requires employers to pay nonexempt employees a minimum wage for all hours worked and an overtime premium equal to at least one and one half times the employee's regular rate of pay for all hours worked in excess of forty in one week. The "white collar" exemptions provide complete minimum wage and overtime pay exemptions for any individual employed in a bona fide executive, administrative or professional capacity as those terms are defined in 29 C.F.R. Part 541. To qualify for the exemptions, the employee must meet all of the tests relating to duties and salary for a particular exemption.

 

In this case, the employer requested guidance regarding whether the position of IT Support Specialist would be exempt under either the administrative employee exemption or the computer employee exemption. According to the employer, the IT Support Specialist (a newly created position, formerly called Help Desk Support Specialist) is responsible for diagnosis of computer related problems as requested by employees, physicians and contractors of the employer. The IT Support Specialist conducts problem analysis and research, troubleshoots, and resolves complex problems. According to information provided by the employer, the majority of the employee's time (55%) involves analyzing, troubleshooting, and resolving complex problems with business applications, networking, and hardware. The job requires a high school diploma or GED, although an associate degree is preferred.

 

 

An employee meets the administrative exemption if he or she is compensated on a salary or fee basis of at least $455 per week and has, as his or her primary duty, the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers. Additionally, the employee's primary duty must include the exercise of discretion and independent judgment with regard to matters of significance. The DOL stated that the IT Support Specialist position does not qualify for the administrative employee exemption because it does not involve the exercise of discretion and independent judgment.

 

The DOL noted that the exercise of discretion and independent judgment must involve more than the use of skill in applying well-established techniques, procedures or specific standards described in manuals or other sources. The DOL also noted that the fact that work is complex or highly specialized along technical lines or that the employer will suffer significant consequences or losses if the employee does not perform the job properly does not automatically mean the work is significant to the management or general business operation of an employer. Thus, even though the upkeep of the computer system is essential to the employer's business, the focus of the analysis must be on the nature of the employee's work, not the consequences of the employee's performance.

 

Here, the DOL found that the IT Support Specialist's duties of maintaining a computer system and testing to see that a particular piece of equipment or an application is working properly according to specifications designed by others lacks the required exercise of independent judgment and discretion to qualify for the administrative employee exemption.

 

 

Under Sections 13(a)(1) and13(a)(17) of the FLSA, computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field who meet certain tests regarding their job duties are eligible for exemption from both minimum wage and overtime pay as professionals. To qualify for this exemption, the employee must be paid on either a salary or fee basis of not less than $455 per week or, if paid on an hourly basis, not less than $27.63 per hour. Additionally, this exemption only applies to employees whose primary duties consist of 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; the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a combination of these duties. Examples of employees who qualify for these duties include computer systems analysts, computer programmers, software engineers, and other similarly skilled workers. The DOL noted, however, that job title alone does not determine the employee's exempt status.

 

In this case, the DOL found that the IT Support Specialist position did not qualify for the computer employee exemption because the job's primary duties of installing, configuring, testing, and troubleshooting computer applications, networks, and hardware did not involve the application of systems analysis techniques and procedures to determine hardware, software or system functional specifications. Nor does the IT Support Specialist position involve the design, development, documentation, analysis, creation, testing or modification of computer systems or programs related to user or system design specifications or machine operating systems. Accordingly, the position did not qualify for the computer employee exemption.

Although DOL opinion letters are not binding and are based upon the specific facts submitted to the agency, the guidance provided in this opinion is useful because it demonstrates the factors the DOL considers in determining whether jobs involving computer-related duties will be considered exempt. Generally, to qualify for the computer employee exemption, the job must involve more than the application of programs or specifications developed by someone else.

This is becoming an increasingly important issue for employers as workplace reliance on computers and computer networks increases and the number of employees responsible for supporting and maintaining computer systems and networks increases. Improperly classifying such employees as exempt has resulted in administrative fines and litigation, including an increasing number of class action claims.

 

If you have any questions regarding the classification of employees working in computer-related positions or any other FLSA issue, please contact the Ford & Harrison attorney with whom you usually work or Jeff Mokotoff, a partner in our Atlanta office at jmokotoff@fordharrison.com or 404-888-3804.