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  • Computer Job: Am I Exempt? Michigan

    My employer is trying to claim in my new contract that I will be an exempt employee. I think he's really reaching to try to avoid paying me overtime.

    Let me explain my job duties; and please explain to me if I'm wrong to think I am not exempt.

    Basically I work for a small IT company that consults, services, and maintains several charter school's computers/networks. I am a technician that will troubleshoot problems either remotely from our office, or drive to the site and fix any hardware, software, networking, etc. issues that may occur. I don't design software. I don't program as well. I'm basically a technician who troubleshoots issues as they occur, and sets up and configures any new networking components, computers, servers, printers as they come along.

    Am I wrong to think it's pretty clear that my duties don't fall anywhere near a computer exemption?

    Please help me out on this. I've already contacted the DOL, and spoke with someone there. They told me that "it sounds like" (shouldn't they know ) I am not an exempt employee.

  • #2
    My opinion is that you should be considered non-exempt. My opinion and two bucks will get you a cup of coffee (though not at Starbucks ).

    Seriously, even the DOL will not give you a hard and fast yes or no based on a telephone call. But I agree that I'm not seeing any evidence to support an exempt classification.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

    Comment


    • #3
      Originally posted by cbg View Post
      My opinion is that you should be considered non-exempt. My opinion and two bucks will get you a cup of coffee (though not at Starbucks ).

      Seriously, even the DOL will not give you a hard and fast yes or no based on a telephone call. But I agree that I'm not seeing any evidence to support an exempt classification.
      So who's opinion will get me a Starbucks coffee? If the DOL can't, what is the next step? A judge?

      Comment


      • #4
        You setup and install new Networking equipment. You're a Network Engineer. Exempt as long as you are making more than the designated computer professional amount. I don't know what the amount is but boils down to about > $60k a year. Check the DOL website, the amount in on there under Computer Professional Exemption.

        Comment


        • #5
          Originally posted by demartian View Post
          You setup and install new Networking equipment. You're a Network Engineer. Exempt as long as you are making more than the designated computer professional amount. I don't know what the amount is but boils down to about > $60k a year. Check the DOL website, the amount in on there under Computer Professional Exemption.
          Hmmm... where did find anything about the amount of money on the DOL site? I will say I'm not making close to $60k a year though.

          Comment


          • #6
            http://www.dol.gov/esa/regs/complian...e_computer.htm

            Here's the details:

            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.

            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 sectioned I bolded is where they will say you are exempt for setting up and installing or changing the configuration of servers and network equipment.

            Repairing just computer hardware would not be exempt, it's what they calssify as "skilled" labor to setup the network/servers that is.

            Comment


            • #7
              I'm making a differentiation here between calling the DOL, giving a description and asking for an opinion; and filing a formal complaint with them that you've been misclassified, for which they will go into much greater detail with both you and the employer.

              The first will get you an opinion. The second will get you a hard and fast answer.
              The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

              Comment


              • #8
                Originally posted by demartian View Post
                http://www.dol.gov/esa/regs/complian...e_computer.htm

                Here's the details:

                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.

                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 sectioned I bolded is where they will say you are exempt for setting up and installing or changing the configuration of servers and network equipment.

                Repairing just computer hardware would not be exempt, it's what they calssify as "skilled" labor to setup the network/servers that is.
                I don't mean to start an argument here, but number 2 (what you bolded) is referring to the consulting and designing of systems based on the user's needs. That is not what I do. I am not the one who designs the system, I am merely the one who installs the hardware based on the information provided to me by my project manager.

                Am I wrong?

                Comment


                • #9
                  Notice the ORs rather than ANDs in the wording. You are making a modification to a system based on system design specifications (from the project manager), correct?

                  I would give the DOL a call, but I haven't met a computer person, even a person who creates login accounts for a living (that's a modification to a server) that wasn't exempt. It's a really broad category so long as you are making enough money to cover it's requirements.

                  Comment


                  • #10
                    Originally posted by demartian View Post
                    Notice the ORs rather than ANDs in the wording. You are making a modification to a system based on system design specifications (from the project manager), correct?

                    I would give the DOL a call, but I haven't met a computer person, even a person who creates login accounts for a living (that's a modification to a server) that wasn't exempt. It's a really broad category so long as you are making enough money to cover it's requirements.
                    Do you think $23,000 (what's stated in the act) is enough money to cover its requirements? Or are we talking different figures here?

                    Comment


                    • #11
                      Originally posted by jrider View Post
                      Do you think $23,000 (what's stated in the act) is enough money to cover its requirements? Or are we talking different figures here?
                      The only reason I know about this topic is because of a number of co-workers who have made complaints over the last 20 years. All were considered exempt with their duties. The ones who made less than $45k a year sometimes ended up being non-exempt (the $$ amounts were lower then). I don't know what the difference is with the weekly/hourly $$ amount they publish. The DOL should be able to clarify that point better.

                      Comment


                      • #12
                        Before any more opinions are given to make a proper determination on your exempt status, the wages paid must be determine. If you are paid a salary of $455 then a proper DOL determination is problably in order. Otherwise, if you are paid by the hr of less than $27.63 a determination is not require nor needed, you are considered non-exempt. How are you paid?

                        Computer Employee Exemption
                        To qualify for the computer employee exemption, the following tests must be met:
                        • 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;
                        • 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;
                        • The employee’s primary duty must consist of:...
                        ========================================

                        "A veteran - whether active duty, retired, national guard, or reserve - is someone who, at one point in his or her life, wrote a blank check made payable to The 'United States of America', for an amount of 'up to and including my life.'" (Author unknown)

                        Comment


                        • #13
                          Originally posted by ArmyRetCW3 View Post
                          Before any more opinions are given to make a proper determination on your exempt status, the wages paid must be determine. If you are paid a salary of $455 then a proper DOL determination is problably in order. Otherwise, if you are paid by the hr of less than $27.63 a determination is not require nor needed, you are considered non-exempt. How are you paid?

                          Computer Employee Exemption
                          To qualify for the computer employee exemption, the following tests must be met:
                          • 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;
                          • 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;
                          • The employee’s primary duty must consist of:...
                          I am paid salary at a rate of more than what is required. That is not my concern here. My concern is that because it seems as though any person working in the field of computers that may have to troubleshoot a system could be considered exempt. This seems very vague to me, and much left to interpretation. I feel as though I'm already underpaid for my experience and area of work, and now because of vagueness in law, I may also not be eligible for overtime. It just puts me in a really tuff posistion. I could be required to work more than 40 hours in a week and not get paid any extra, on top of not making enough to begin with. I don't know, it's just very disconcerning.
                          Last edited by jrider; 03-12-2007, 04:13 PM.

                          Comment


                          • #14
                            Originally posted by jrider View Post
                            I am paid salary at a rate of more than what is required. That is not my concern here. My concern is that because it seems as though any person working in the field of computers that may have to troubleshoot a system could be considered exempt. This seems very vague to me, and much left to interpretation. I feel as though I'm already underpaid for my experience and area of work, and now because of vagueness in law, I may also not be eligible for overtime. It just puts me in a really tuff posistion. I could be required to work more than 40 hours in a week and not get paid any extra, on top of not making enough to begin with. I don't know, it's just very disconcerning.
                            You said earlier that you are not making anything close to $60k a year, yet $27.63 an hour for 40 hours a week at 52 weeks a year equals = $57,470.40

                            Now you state you are paid what is required. Which is it??

                            Call the DOL and ask them... The link I gave earlier has information on how to contact them.

                            Comment


                            • #15
                              http://www.twc.state.tx.us/news/efte...employees.html

                              I found the following on a TX site, but it brings up the federal requirement information: The second point about the ruling in Dec. 1998 may be of particular interest to you as it goes against what each of my co-workers were told about being exempt by the DOL and may be your help in claiming non-exempt.

                              --------------------------------------------------------------------

                              the regulations (29 C.F.R. 541.400 and 541.401 (former regulations 541.3(a)(4) and 541.303)) exclude workers who build or install computer hardware or who are merely skilled computer operators; they make clear that the exemption applies only to the true software programming or design experts

                              a DOL letter ruling of December 4, 1998 (BNA, WHM 99:8201) states that this exemption does not include employees who "provide technical support for business users by loading and implementing programs to businesses' computer networks, educating employees on how to use the programs, and by aiding them in troubleshooting." In other words, "help desk" employees do not fit this exemption.

                              properly speaking, the exemption applies only to the very top experts in computer software, i.e., the ones who actually write the software programs, or who design, implement, and maintain a company's network software, intranet, or Internet presence

                              an employee who fits this exemption may be paid either a salary of at least $455 per week, or on an hourly basis with no premium for overtime work, i.e., straight-time pay for all hours worked, as long as the hourly rate is at least $27.63 per hour

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