No. If you are an employee working in a computer-related occupation such as computer programming, systems analysis or software engineering, you may have been told you are not entitled to overtime pay under the federal Fair Labor Standards Act (FLSA). That is not necessarily true.
The FLSA guarantees most employees in the U.S. pay of at least the federal minimum wage for all hours worked, along with overtime pay of 1-1/2 times their regular rate of pay for all hours worked beyond 40 in a single workweek. If your employer and your employment relationship meet the threshold for FLSA coverage, you are generally covered by the law. That means you are entitled to the minimum wage and overtime rate unless there is a specific exemption in the law.
Just because a computer employee exemption exists doesn’t mean you’re exempt
There is a computer employee exemption from the FLSA, but it only applies in certain circumstances. The exemption does not depend on the job title your employer assigned you but on whether you meet all of the following tests:
- You must be compensated, either on a salaried or fee-basis, at a rate of at least $684 per week or, if on an hourly basis, at least $27.63 per hour.
- You must be employed as a computer programmer, computer systems analyst, software engineer or another similarly skilled worker in the computer field.
- You must primarily perform these job duties:
- 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, or
- A combination of the aforementioned duties, the performance of which requires the same level of skills
If you meet all of those criteria, you are likely exempt from the FLSA and therefore not entitled to overtime. However, many computer professionals are not exempt and should be receiving overtime.
For example, the exemption does not include workers who are involved in the manufacture or repair of computer hardware or related equipment.
Also, many people use computers extensively in their jobs without being exempt computer professionals. In order to be exempt, you must be primarily engaged in computer systems analysis, programming or similar work. People who rely on computers to do their jobs — engineers and CAD operators, for example — are generally not exempt computer employees and should be receiving overtime pay.
Unfortunately, many workers are misclassified as exempt under the FLSA. If you are not receiving the full minimum wage or the overtime premium and you wonder if you should be, discuss your concerns with an experienced employment law attorney.