DOL Proposed Overtime Rules Raise Possibility of Expansion of Computer Professional Exemption

Last week’s announcement by the Department of Labor of proposed changes to its Part 541 overtime exemption rules appropriately focused on the huge increase to the salary test required for exempt employees. Buried within the proposal are some intriguing hints from DOL that could impact employers’ ability to use the Computer Professional exemption.

The Computer Professional exemption was added to the FLSA by Congress in 1990. Subsequent DOL rules limit it to programmers, systems analysts, and other computer-related occupations that would otherwise meet the administrative or executive exemptions. Unlike those exemptions, the employer has the option of paying a guaranteed weekly salary, or an hourly equivalent of that salary.

Under the new DOL proposal, that salary/hourly wage would rise by 2016 to $50,440/$24.25 per hour. However, DOL also asked for comments regarding examples of exempt computer occupations. The agency continues to maintain that typical “IT Help Desk” employees do not qualify for the Computer Professional exemption because they follow established procedures and do not possess the necessary discretion and independent judgment required under the test. However, the agency noted the “tremendously rapid pace of significant changes occurring in the information technology industry.”

DOL set forth an example of an information technology specialist “who, without supervision, routinely troubleshoots and repairs significant glitches in his company’s point of sale software for the company’s retail clients.” DOL stated that such employee might meet the definition of an exempt administrative employee because the work requires the use of discretion and independent judgment with respect to matters of significance to the business.

The agency’s request indicates that it is willing to update examples of exempt Computer Professionals used in the rules. These examples could allow employers to claim the exemption for employees who do not appear to fit under the current ones adopted in 2004. Employers interested in clarifying the exempt status of their computer occupations may want to take the opportunity to comment on the proposed rules, and provide examples to DOL of positions they believe should be confirmed as falling within the exemption.


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