In New York, employers must pay their employees overtime at a rate of time and a half for every hour over 40 worked in a workweek. Employers may try to tell computer professionals that they are not entitled to overtime because they are exempt. New York employers frequently misclassify computer professionals as exempt from being paid overtime.
Discuss Your Unpaid Overtime Case with a Computer Professional Attorney
If you are a computer professional and aren’t being paid overtime because your employer told you you’re exempt, don’t assume your employer is correct. You need an experienced employment attorney at Lipsky Lowe LLP. If you’re entitled to overtime, we can help you fight for unpaid overtime and additional compensation. Contact Lipsky Lowe LLP today to schedule your free initial consultation.
Understanding Overtime Pay Laws
The Fair Labor Standards Act (FLSA) establishes rules regarding how employees must be compensated. The majority of employees are paid on an hourly basis. Hourly employees are considered non-exempt workers entitled to overtime for every hour they work over 40 hours in a workweek. Employers must pay at least time and a half of the employee’s regular pay rate for overtime hours.
Some workers are considered “exempt” from the overtime pay requirement because they are paid on a fee or salary basis, not on an hourly basis. Exempt employees are paid a yearly salary instead of being paid per hour worked. They typically receive a fixed sum biweekly.
The Computer Professional Exemption
Under federal law, computer professionals are one type of worker who may be exempt from overtime pay. However, the fact that an employee works on a computer as part of their day-to-day work activities doesn’t necessarily qualify them as an exempt employee. Using computers as part of the job isn’t enough to qualify an employee as an exempt computer professional. The FLSA establishes four separate eligibility requirements that exempt employees must meet. The category of computer professionals includes the following job categories:
- Computer systems analysts
- Computer programmers
- Software engineers
- Similarly skilled workers
The employee must be compensated on a salary or fee basis at a rate of at least $684 per week or at an hourly rate of at least $27.63 per every hour worked. An employee paid on salary is not compensated based on the number of hours they work. Instead, they all receive a fixed sum at a fixed duration.
Vacation days or overtime hours do not affect the compensation rate, nor do end-of-year bonuses, commissions, or non-discretionary incentives. Employees must meet additional FLSA salary requirements and rules to be eligible as exempt employees. Employers cannot pay their employees minimum wage and then try to convert the amount to a salary to avoid paying overtime.
The Primary Duty Test
Not every employee who uses computers most of the time at work will be considered a computer professional. Courts will use a primary duty test to decide if you are exempted from overtime requirements because you’re a computer professional. A computer professional’s primary duty involves working directly with, creating, or altering computer technology, such as software and operating systems.
Whether an employee’s primary duty is that of a computer professional will be based on all of the unique facts in that particular case. Courts will place a major emphasis on the employee’s job character as a whole. In order to qualify as an exempt employee, the employee’s primary duty needs to consist of:
- 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 duties mentioned above, the performance of which requires the same level of skills.
Computer Professionals Who Are Not Exempted for Overtime Payment
Employees engaged in the manufacture or repair of computer hardware and related equipment are not considered “computer professionals.” Employees who are dependent on the use of computer or computer software programs but aren’t primarily engaged in computer systems analysis and programming are not exempt. As a result, the following types of employees are not considered exempt and are entitled to overtime for time worked above 40 hours per week:
- Others skilled in computer-aided design software
Are Computer Professionals Entitled to Overtime?
If your employer has told you that you are not entitled to overtime because you are an exempt computer professional, don’t take their word for it. Your employer may have misclassified you as exempt when you aren’t. Even if your job title would presumably fall into the category of a computer professional, you may not meet all of the eligibility requirements to be exempted. Courts will consider whether you are primarily engaged in computer systems analysis and programming or another similarly skilled computer-related occupation.
Discussing your case with an attorney can help you understand whether you are being underpaid for overtime. Your employer may be engaging in other types of wage violations as well. Computer professionals are unique because employers are not required to pay them their weekly salary because they often work on tasks that require weeks at a time, and they may be paid in a lump sum. If your employer fails to pay you regularly and uses the computer professional exemption as an excuse, you may be entitled to compensation.
Contact an Overtime Wage Attorney in New York City
If you are a computer professional and you’ve been classified as exempt from overtime pay, your rights may have been violated. The skilled employment attorneys at Lipsky Lowe LLP will carefully review your case and help you understand your legal options. Our employment law firm has a proven track record of fighting aggressively for clients who’ve been denied their deserved pay. Contact Lipsky Lowe LLP today to schedule your free case evaluation.