January 2007, Volume 6, Issue 1
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| HR and the Law in the News
January 2007, Volume 6, Issue 1 |
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DOL Opinion Letter Finds IT Support Specialist Non-Exempt
For those of you that have been receiving this newsletter for a few years, you may recall an article in the October 2004 edition in which the 6th U.S. Circuit Court of Appeals held that a Help Desk Technician was not properly classified as an exempt employee. More recently, on October 26, 2006 the U.S. Department of Labor (DOL) published an opinion letter reaching a similar conclusion; the duties performed by an IT Support Specialist (renamed from Help Desk Support Specialist) do not qualify for the administrative or computer employee exemption. While every worker must be assessed on an individual basis according to how much s/he is paid (minimum salary test); how s/he is paid (salary basis test); and the duties the employee actually performs (duties test), this letter may serve as a guide to assess your own, similar positions. In this case the employee's primary duties were: "(1) 55% - Analyzes, troubleshoots, and resolves complex problems with business applications, networking, and hardware...Prioritizes tasks based on service level agreement criteria with limited supervision; and (2) 20% - Installs, configures, and tests upgraded and new business computers and applications based upon user-defined requirements. Assists users in identifying hardware/software needs and provides advice regarding current options, policies and procedures. Creates and troubleshoots network accounts and other business application user accounts." To qualify for the Administrative exemption an employee must meet not only the minimum salary and salary basis tests, but also perform office or non-manual work directly related to management or general business operations and must, as his or her primary duty, exercise discretion and independent judgment with respect to matters of significance. The Opinion Letter reads, in part, "The primary duty of the IT Support Specialist you describe consists of installing, configuring, testing and troubleshooting computer applications, networks and hardware. Maintaining a computer system and testing by various systematic routines to see that a particular piece of computer equipment or computer application is working properly according to the specifications designed by others are examples of work that lacks the requisite exercise of discretion and independent judgment within the meaning of the administrative exemption." Qualifying for the Computer Employee exemption requires, in addition to meeting corresponding salary tests, that the employee's primary duty consist of (1) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functions specifications; (2) 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; (3) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (4) a combination of the aforementioned duties, the performance of which requires the same level of skills. The DOL found that, based on the duties described, this employee's primary duty did not meet any of the four elements listed above. Lessons Learned? Remember that your FLSA analyses must be conducted as an independent exercise, based on the actual duties performed by each employee and not based on the job title. Also keep in mind that it is possible to have several employees in the same job classification, some of whom are exempt and some non-exempt. This can be the result of a difference in the duties the employees perform or in their wages, e.g., a part time employee may not meet the minimum salary test or an employee performing below expectations may not be meeting the duties test. Want More Information? Particularly for those of you that are multi-state employers, don't forget there are 17 states with their own regulations that have definitions of exempt status that differ from the federal regulations. Contact FiveL today for a listing of those 17 states. And for all employers, click here for more information about minimum salary, salary basis and the various duties tests. There is also a Powerpoint presentation you can download and share with your HR administrators!
Hot Hits! Education Corner
January's Public Seminars/Speaking Engagements: January 17th, "Employee Where Art Thou? The Latest News in Managing Disabilty and Leave Issues" presented for the Chesapeake Human Resources Association, 5:00 - 6:30 p.m., Baltimore, MD January's Client Training Programs: " Maintaining an Inclusive Workplace" (3) " HR Jeopardy for Managers"
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