The FLSA contains an overtime exemption for certain computer workers who are paid on a salary basis of at least $455 per week or $27.63 per hour. In order to be exempt from overtime requirements, the computer worker must be employed as an analyst, programmer, engineer or other similarly skilled worked with a primary duty of: (i) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (ii) 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; (iii) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (iv) a combination of the aforementioned duties, the performance of which requires the same level of skills.
Many first and second level computer help-desk and field support employees are improperly classified as exempt employees notwithstanding the fact that their job duties are primarily “break-fix” related and do not meet the FLSA’s detailed requirements as set forth above. While employees working within the financial services industry in banks e and hedge funds are often tasked with maintaining equipment that is vital to the continued operation of the business, following a detailed set of tasks or instructions to keep the hardware or computer system running correctly typically does not meet the requirements for FLSA exemption. Computer workers are also frequently “on-call” on nights and weekends and should be compensated for work performed remotely while required to be “on call.” Further, under certain circumstances, employees are required to be compensated for all time spent while “on call” when the employer places substantial restrictions upon the personal use of time spent while “on call.”
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