Legal Question in Employment Law in Florida

I need "exempt" cleared up. I work as a computer tech. I answer the phone, take messages for others, and resolve problems for customers that call in. The problems are software related. Software not working correctly, printers not working, also custom work such as, creating crystal reports, and word document forms. We are told that we are exempt. My employer also started mandatory weekly meetings online at home, in which we don't get paid for because we are exempt. I punch a time card. (not sure if this matters) I have researched the term "exempt" but I am still fuzzy to whether I am really considered exempt. I work in Florida.

Asked on 1/16/10, 3:55 am

1 Answer from Attorneys

Andrew Frisch Morgan & Morgan, P.A.

Most Computer/IT Workers that perform the tasks you describe are non-exempt and entitled to overtime pay.

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 DOL�s regulations. The specific requirements for the computer employee exemption are summarized below.

To qualify for the computer employee exemption, all of the following tests must be met:

(1) 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;

(2) 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; AND

(3) The employee�s primary duty must consist of:

A. The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;

B. 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;

C. The design, documentation, testing, creation or modification of computer programs related to machine operating systems; OR

D. 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.

If you would like to discuss your particular issue further, feel free to contact me at 1-888-OVERTIME for a free consultation today.

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Answered on 1/21/10, 4:21 am

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