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computer professional exemption from overtime

Computer Professional Exemption from Overtime 

"Computer professionals" within the meaning of the exemption from overtime pay includes computer systems analysts, computer programmers, software engineers and other similarly skilled workers are eligible for exemption as “professional” employees. The exemption applies to those:
  • who are compensated on a salary or fee basis at a rate of at least $455 per week or at an hourly rate of at least $27.63 per every hour worked (as of the time this article is written); and
  • whose primary duty consists of either:
    “(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.” [29 CFR § 541.400(b)]

Employees earning more than $100,000 per year are exempt from FLSA overtime and minimum wage requirements if they customarily and regularly perform one or more of the duties of a computer employee. [See 29 CFR section 541.601). Computer workers who do not meet the requirements of the computer worker exemption may still be exempt from FLSA overtime and minimum wage requirements, if they meet the requirements of the “executive” or “administrative” exemptions.

The exemption applies only to those employees whose primary duty requires the theoretical and practical application of highly-specialized knowledge in computer systems analysis, programming and software engineering. It is not enough that the employee's job involves highly-specialized knowledge of computers and software. (see Martin v Indiana Michigan Power Co. (2004)). Exempt “systems analysis,” “software engineering” and “programming” work is limited to employees whose primary duties are in the realm of design and development, where business needs and problems are translated into systems that fit user needs and business imperatives. 

Examples of Jobs that Fall Into Computer Professional Exemption
One court held that an employee whose primary duty was the development, analysis, creation, testing and/or modification of computer programs based on user specifications, was exempt as a computer professional. Another court held that an employee whose primary duty was designing programs by conducting intensive research to find out what technical steps were necessary and then designing, developing and writing code for program, was also exempt from overtime pay as a computer professional. Finally, in another case an employee whose duties included evaluating employer's network, identifying concerns with proprietary software and making related recommendations to CEO, writing specifications for wireless network topography and other systems, designing and implementing LAN infrastructure, and evaluating emerging technologies, was exempt from overtime compensation as a computer professional. 

Examples of Jobs that Should Not Be Exempt from Overtime
Employee involved in IT support was not exempt where employee merely installed and upgraded hardware and software on workstations, configured desktops, checked cables, replaced parts, and troubleshot software problems. Employee performed his work to predetermined specifications in the system design created by others. Highly-specialized knowledge of computers and software by itself is not enough to exempt the employee from overtime pay. That knowledge has to actually be used in performance of the job duties in order for the computer professional exemption to apply. IT support workers are some of the most commonly misclassified employees who are generally entitled to overtime pay. 

Similarly, employees who respond to customer needs, train customers on specialized computer software, change software settings and specifications to fit customer needs, and visit customers to ensure satisfaction are not exempt. On the other hand, an employee who consults with users as a means of “systems analysis,” in order to determine hardware, software, or system functional specifications, may be exempt.

Computer Testing May or May Not Be Exempt
The “testing” that is involved in creating a system, determining the desired settings for a system, or otherwise substantively affecting the system may be exempt. On the other hand, testing to ensure that a particular computer or computer application is working properly according to specifications designed by others is not exempt.  

Exemption Generally Does Not Apply to Manufacture and Repair 
The computer professional exemption does not apply to computer employees “engaged in the manufacture or repair of computer hardware and related equipment” even if their work is highly dependent upon, or facilitated by, the use of computers and computer software programs. (29 CFR section 541.401).   

If you have any questions regarding whether you are properly classified as exempt from overtime under computer professional or administrative exemption, feel free to contact us. 

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


57 Post Street, Suite 812, San Francisco, CA 94104; Tel. (415) 295-4730; Fax. (415) 508-3474; [email protected]
  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case