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The computer professional employee exemption under the Fair Labor Standards Act (FLSA) does not apply to a health care employer’s information technology (IT) support specialists, who also are not covered by the administrative exemption, according to a U.S. Department of Labor (DOL) opinion letter.
An unidentified employer in the health care industry sought the DOL’s opinion when the employer created the new position of IT support specialist, formerly classified as help-desk specialist.
Primary duties emphasized
In determining that the IT support specialists were not exempt, the DOL gave particular emphasis to the job’s primary duties. According to the job description, the amount of time specialists spent on various duties was as follows:
• 55 percent—Analyze, troubleshoot and resolve complex problems with business applications, networking and hardware. Accurately document all work in appropriate problem-tracking software. Prioritize tasks based on service-level agreement criteria with limited supervision.
• 20 percent—Install, configure and test upgraded and new business computers and applications based on user-defined requirements. Assist users in identifying hardware/software needs and provide advice regarding current options, policies and procedures. Create and troubleshoot network accounts and other business application user accounts as documented in the employee life cycle process.
• 10 percent—Participate in the design, testing and deployment of client configurations throughout the organization. Leverage application packaging software technology for the deployment of business applications to client systems.
• 5 percent—Participate in the analysis and selection of new technology required for expanding computing needs throughout the organization. Work with competing vendors to determine the best selection based on price, technical functionality, durability, manufacturer support, manufacturer vision and position in the health care industry.
• 5 percent—Document technical processes and troubleshooting guidelines. Document end-user frequently asked questions about computer systems or programs and publish on the intranet as guidelines for the entire organization.
• 5 percent—Monitor automated alerts generated by system management tools and make decisions on the most effective resolution.
Of these requirements, the DOL concluded that only minor aspects of the work—5 percent to 10 percent—included participating in the design of client configurations and analyzing and selecting new technology.
The primary duty was installing, configuring, testing and troubleshooting computer applications, networks and hardware. Though this work may be unusually complex and highly specialized along technical lines, it did not meet the administrative exemption’s requirement that the job’s primary duty be “directly related to the management or general operations,” the DOL stated. The fact that there may be significant consequences or losses if IT support specialists bungle their duties did not qualify them automatically as significant to the management or general business operations, the DOL added.
Moreover, the employer’s description of the tasks, performance and decisions made by an IT support specialist did “not demonstrate that their primary duty includes the exercise of discretion and independent judgment with respect to matters of significance to management or general business operations of the employer,” the DOL emphasized.
And the mere fact that the job title was an IT support specialist was not enough for the employees to fit within the computer professional employee exemption. In addition to satisfying the salary ($455 per week) or hourly ($27.63 an hour) minimum to qualify for the computer employee exemption, the primary duties for this exemption must be any of the following:
• The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications.
• 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.
• The design, documentation, testing, creation or modification of computer programs related to machine operating systems.
• A combination of these duties, the performance of which requires the same level of skills.
Because the DOL concluded that the IT support specialists’ primary duty did not include such duties, the computer professional employee exemption does not apply and the IT support specialists are covered by the FLSA’s minimum wage and overtime provisions (FLSA 2006-42, dated Oct. 26, 2006 and issued Nov. 21, 2006).
Registered representatives are exempt
In other recent opinion letters, the DOL has determined that:
• Registered representatives (e.g., account executives, broker representatives, financial executives, financial consultants, financial advisers, investment professionals and stockbrokers) in the financial services industry qualify for the administrative exemption (FLSA 2006-43).
• Instructors at a career school providing technical instruction and professional development to students pursuing careers as automotive, diesel, collision repair, motorcycle and marine technicians qualify for the teacher exemption (FLSA 2006-41).
• Employees of a provider of vacation excursions lasting three to 10 days on small American-flagged vessels are exempt (FLSA 2006-39).
• A boat captain is exempt in workweeks when at least 80 percent of his performed duties are those of a seaman as defined in the Fair Labor Standards Act seaman exemption (FLSA 2006-44).
• A school district’s secretarial, clerical and bookstore employees may volunteer as ticket-takers, ushers, box office personnel or security workers at games during basketball or football season without compensation to the extent that the services are not the same as or do not resemble services they otherwise are employed to perform (FLSA 2006-40).
Allen Smith, J.D., is SHRM’s manager of workplace law content.
Related article: White-Collar Wrinkles, HR Magazine, December 2004.
For the latest HR-related business and government news, go daily to www.shrm.org/hrnews.
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