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Fact Sheet:
Exemption for Employees in Computer-Related Occupations Under the Fair
Labor Standards Act (FLSA)
This fact sheet provides general
information on the exemption from minimum wage and overtime pay for
employees in the computer field under Sections 13(a)(1) and 13(a)(17) of
the FLSA and Regulations, 29 CFR Part 541.
The FLSA requires that most employees in
the United States be paid at least the Federal minimum wage for all
hours worked and overtime pay at time and one-half the regular rate of
pay for all hours worked over 40 hours in a workweek.
However, Section 13(a)(1) and Section
13(a)(17) of the FLSA provide an exemption from both minimum wage and
overtime pay for computer systems analysts, computer programmers,
software engineers, and other similarly skilled workers in the computer
field who meet certain tests regarding their job duties and who are paid
at least $455 per week on a salary basis or paid on an hourly basis, at
a rate not less than $27.63 an hour.
Job titles do not determine exempt
status. In order for this exemption to apply, an employee’s specific
job duties and compensation must meet all the requirements of the
Department’s regulations. The specific requirements for the computer
employee exemption are summarized below.
See other fact sheets in this series for
more information on the exemptions for executive, administrative,
professional, and outside sales employees, and for more information on
the salary basis requirement.
Computer Employee Exemption
To qualify for the computer employee
exemption, the following tests must be met:
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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;
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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;
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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.
The computer employee exemption does not
include employees engaged in the manufacture or repair of computer
hardware and related equipment. Employees whose work is highly
dependent upon, or facilitated by, the use of computers and computer
software programs (e.g., engineers, drafters and others skilled in
computer-aided design software), but who are not primarily engaged in
computer systems analysis and programming or other similarly skilled
computer-related occupations identified in the primary duties test
described above, are also not exempt under the computer employee
exemption.
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.
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