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Wage & Hour Issues
Exempt versus Non-exempt Employees: The Professional Exemption (includes computer professionals)
Professional employees such as doctors, lawyers, accountants,
engineers, university professors, and artists are also exempt from the
state and federal minimum wage and overtime requirements. In order to
qualify for the professional exemption, an employee must meet the following
criteria:
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The employee's primary duty must be:
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work requiring knowledge of an advanced type in a
field of science or learning customarily acquired by the prolonged
course of specialized intellectual instruction and study as distinguished
from a general academic education or apprenticeship; or
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original and creative work in an artistic field; or
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teaching, tutoring, instructing or lecturing as a
teacher certified in the school system or educational establishment
by which he is employed; or
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work requiring highly specialized knowledge in computer
systems or software.
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The employee's work must require the consistent exercise
of discretion and judgment.
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The employee must be compensated on a salary or fee
basis of at least $475 per week ($250 under the FLSA), exclusive
of board, lodging or other facilities. However, lawyers, doctors,
and teachers need not be paid any specific minimum salary. In addition,
certain computer professionals may be compensated on an hourly basis
and still be exempt; see discussion below.
This is the "short test" for determining the
professional exemption.
If an employee does not meet the short test requirements,
however, then the following criteria must be met in order to be considered
an exempt professional employee:
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The employee must be paid on a salary or fee basis
of at least $400 per week, exclusive of board, lodging or other facilities;
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The employee must meet criteria # 1 and # 2 above,
plus:
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The employee's work must be predominantly intellectual
and varied in character as opposed to routine, mental, mechanical
or physical work and of such character that the output produced or
the result accomplished can be standardized in relation to a given
period of time; and
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The employee does not devote more than 20 percent of
his or her hours worked in the workweek to activities which are not
an essential part of and necessarily incident to the duties described
above.
In order to be considered an exempt professional, the Connecticut
Department of Labor takes the view that the employee must have the education
and any licenses or certifications typically required for the profession.
For example, an engineer would be expected to have at least a bachelor's
degree in engineering or a related field. An individual performing engineering
tasks who learned on the job but does not have a degree, or one who has
a degree in an unrelated field, likely would be considered nonexempt
by the Connecticut Department of Labor.
On the other hand, the fact that an employee may have a
professional license or degree does not mean that he or she automatically
qualifies as an exempt professional. The nature of the job duties is
critical. For example, while many accountants are exempt as professional
employees, an accountant who primarily performs routine bookkeeping tasks
would likely be considered non-exempt.
Computer Professionals
FLSA regulations specifically address computer professionals. Notably,
under the federal regulations, a computer professional need not be paid
on a salary or fee basis, but can be paid on an hourly basis. Employees
in computer-related occupations who are paid at a rate of at least $27.63/hour
may be exempt, provided that they otherwise meet the "duties" requirements
for exemption.
Note that the Connecticut regulations do not include similar
provisions for computer professionals, and the Connecticut Department
of Labor has not taken an official enforcement position on this issue.
In order to be exempt, the work must require theoretical
and practical application of highly specialized knowledge in computer
systems analysis, programming, and software engineering. While job titles
are not determinative of the applicability of the exemption, common job
titles include computer programmer, systems analyst, computer programmer
analyst, applications programmer, applications systems analyst, software
engineer, software specialist, systems engineer, and systems specialist.
To be considered for the exemption, the employee's primary
duty must consist of one or more of the following:
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The application of systems analysis techniques and
procedures, including consulting with users, to determine hardware,
software, or system functional specifications;
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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;
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The design, documentation, testing, creation, or modification
of computer programs related to machine operating systems; or
Note that the exemption applies only to those highly-skilled
employees who have achieved a level of proficiency in the area. The exemption
does not include trainees or employees in entry-level positions learning
to become proficient, or employees who have not attained a level of skill
and expertise that allows them to work independently and without close
supervision. In addition, the exemption does not include employees engaged
in the operation of computers or in the manufacture, repair, or maintenance
of computer hardware or related equipment.
The level of expertise and skill required to qualify for
the computer professional exemption is generally attained through combination
of education and experience in the field. While such employees commonly
have a bachelor's or higher degree, no particular academic degree is
required for the exemption. Also, there are no requirements for licensure
or certification.
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