How does an employer apply the computer employee exemption to cutting-edge computer jobs?

Author: Jessica Sussman

To qualify for the computer employee exemption, an employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field. The employee's primary duty must 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 or computer programs related to machine operating systems; or
  • A combination of the above duties, the performance of which requires the same level of skills.
  • The employee must also be compensated on either a salary or fee basis at a rate of not less than $455 per week (increasing to $913 per week on December 1, 2016) or $27.63 per hour to qualify for the computer employee exemption. The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. For example, information technology specialist are generally not exempt as they do not exercise discretion or independent judgment, but rather apply established techniques and procedures, and their primary duty does not include any of those enumerated above.

    Additionally, employees whose work is highly dependent on the use of computers and computer programs, including engineers, help desk employees, computer design employees, but who are not primarily engaged in computer systems analysis and programming, are not exempt under the computer employee exemption.

    Note: Effective December 1, 2016, new FLSA regulations will raise the minimum weekly salary for overtime-exempt computer employees from $455 to $913. This minimum salary level will be adjusted every three years.