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So, my understanding is that as of December 1st of this year employers are required to start paying overtime to salaried employees making under 47,500, or bump their salary to 47,500 for the employee to be exempt from overtime.

Some people mentioned computer workers/IT position were probably exempt from this rule, but according to the final2016, this rule does apply to employees in “computer worker” positions.

I am a salaried employee and fall under this salary threshold and I’m waiting to hear from my employer if I need to start logging my hours for overtime, but I’m not getting any answers at this time. Anyone else dealing with this situation right now?

https://www.dol.gov/whd/overtime/final2016/webinarfaq.htm (Specifically mentions rule applies to “computer workers”)

https://www.dol.gov/whd/overtime/final2016/

Fact Sheet #17E:Exemption for Employees in Computer-Related Occupations Under the Fair Labor Standards Act (FLSA) | U.S. Department of Labor (Old rules)

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There are a lot of other requirements to be exempt. I fought to keep my junior programmer from having to clock in and out. We don’t do a lot of overtime regardless but clocking is a pain in the ass.

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Thats the excuse my HR put me from salary to hourly. Doesn’t matter since they modify my time sheet…

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Yeah I’m under that salary value too, but I’m not going to hold my breath. Haven’t heard anything from management pertaining to this either.

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Pain in the ass? It takes a whole 30 seconds, I’d be totally fine with clocking in and out if they wanted, especially if it meant I would get compensated for all the overtime I put in.

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I’m on call 24/7 so I could see my overtime adding up pretty quick. I imagine they may just bump my salary just over the threshold to save from having to jack with overtime. But, not having any communication from my employer is a bit frustrating.

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You sure they’re just not oblivious to the changes? lol

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That is the bizarre thing. They have started moving some other non-IT employees from salary to hourly because of this. They just haven’t come to me yet.

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I’d guess they’ll bump you just above the level, so they can keep you away from OT. I am sure they are trying to figure out a creative way to do it, since OT would be in your best benefit.

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It is actually really hard for them to exempt you if you are just a network/system admin. There have been court cases about this. The computer professional exemption only applies to Systems Analysts/programmers. It is an AND not an or; you have to meet several criteria. Most businesses skirt around this because most people are not going to complain and they feel that they shouldn’t have to pay overtime since they pay X amount of dollars.

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I am worried about this to cause I just took a new job and I fall under the required amount to not get overtime, but we have a lot of projects and sometimes I am pulling 12-16hr days and working weekends as well. They are trying to figure out what would be worse I guess. Overtime VS Pay Increase

Level 2 is a interesting position to be in right now.

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Ohhh, the things I would do for 47.5k!

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According to the documentation (SmallBusinessGuide) a computer employee can be exempt if:

Computer employee exemption
To qualify for the computer employee exemption, the following duties requirements must be
satisfied:
• The employee must be employed as a computer systems analyst, computer programmer,
software engineer, or other similarly skilled worker in the computer field; and
• The employee’s primary duty must consist of:

  1. The application of systems analysis techniques and procedures, including consulting
    with users, to determine hardware, software, or system functional specifications;
  2. 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;
  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.

Notice that it is an OR. You only have to satisfy one of those criteria to be exempt. Most IT guys will hit number 1 on the list. Programmers would hit the rest.

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That makes them exempt from OT if they have a salary after 47,500 or higher. If the salary is below 47,500 they still qualify according to the new 2016final rule.

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My boss and I discussed this in detail when the law first came down. Instead of going the exception route, he had been wanting to give me a raise (other than a COLA) and this provided the opportunity. He submitted to our elected officials that my job title and work duties be modified slightly (other official duties were added). Those details were then aligned with an updated salary schedule that was then submitted for approval by said officials. That placed me over the financial threshold and he was able to leverage the potential cost-savings of not paying me extra OT to justify the increase and job description change when the approval was discussed. I couldn’t see that happening for an entire IT Department, but it worked for my “one-man show.”

(I also want to note, I’m not putting this up here to brag…I’m sincerely hoping this helps someone leverage the new law to their advantage…)

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Just making more still doesn’t make you exempt, it just means that’s the line where there is NO litmus test loophole. You can still make 50K and not be a manager, or profesional and deserve over-time. To TRUELY be exempt assuming you don’t hit any of the other exemptions requires they pay your $100K.

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I am hourly and don’t make anything near $47,500. The company has never paid OT before as anything over full time hours was turned into comp time. For us, full time is not 40 hours but 37.5, so the company still gets 2.5 hours out of us before having to grant comp time. When this change goes into effect those of us who qualify, (most of us) will not get any OT pay until we have passed the 40 hour mark, so they still gets that 2.5 hours out of us before having to pay OT.

Either way, company versus employee, who do you think is going to get the short end of the stick?

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Anonymous complaint, they don’t know who did it, I’m betting on employees getting paid.If your scared of your employer terminating you for asking to get paid what you get paid you REALLY need to find a new job/career.

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One other thing to note is they can use bonus’s to meet this but only up to 10%.

For employers to credit nondiscretionary bonuses and incentive payments (including commissions) toward a portion of the standard salary level test, such payments must be paid on a quarterly or more frequent basis.

Also to note

if an employee does not earn enough in nondiscretionary bonuses and incentive payments (including commissions) in a given quarter to retain their exempt status the Department permits a “catch-up” payment at the end of the quarter. The employer has one pay period to make up for the shortfall (up to 10 percent of the standard salary level for the preceding 13 week period). Any such catch-up payment will count only toward the prior quarter’s salary amount and not toward the salary amount in the quarter in which it was paid. If the employer chooses not to make the catch-up payment, the employee would be entitled to overtime pay for any overtime hours worked during the quarter.

This means that you are judged on a quarter by quarter basis. So total up all your hours for the quarter, and if you don’t make this but are within 10% they can close the gap. If they can’t close the gap (or don’t), then they now owe you back pay for overtime.

The key is that for someone to be exempt they MUST meet both the HCE test AND the standard duties test UP to the 90 percentile of average wages (current $134,004) if you want to except them. The 913 per week (40 percentile of lowest region which is the South) is the draw line before you can even try to use the standard duties test.

Basically we get a progression of

BAND 1

0 - 47K (Your getting overtime no matter what, and if they don’t come within 11.75K for the quarter and they don’t make up a difference (not to exceed 10%) your owe’d back pay.

Band 2

47K to $134,004 - You MIGHT get overtime depending on the standard duties test. Are you a professional (Engineer, Teacher, Doctor, Lawyer) are you a software developer (HelpDesk doesn’t count FYI!), Are you a manager (Not a supervisor, McDonalds lost that one). Does your job require extensive self direction, or are you largely told what and when to do are some of the tests that strike here. IT staff are split on where the fall in these tests.

Band 3

134K and up. - Your in the top 10% of national full time wage earners, and you only get overtime if your employer feels like it. There are worse problems to have in life, and you likely get other non-cash benefits that likely give you an extra 20% compensation (or more, much much more), so “working extra hard” can likely pay off based on performance bonus’s of cash, stock or both.

In short, much like how the insurance/healthcare stuff is operating right now in the states, the lower class gets a hand, the middle class get screwed, and the upper middle to upper class makes out about the same.

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Years ago, I used to work for a technology company that was clearly breaking labor laws when it came to OT. For example, all of our help desk people, and for some this was their first job – and clearly not exempt from OT laws, were paid salary with expected and uncompensated overtime. The warehouse crew was the same. Everyone, regardless of position, made salary without OT. The average salary in the help desk was under $30k. Some people worked ~45 hours, whereas a few were working 50-60. It was a startup (sort of) so they liked to preach the whole “we’re all part of an awesome team and need to go above and beyond” type stuff.

Personally, I was definitely exempt since I was a manager of a department, paid fairly well and an executive (SVP, though that doesn’t mean a whole lot). I complained repeatedly to the CEO about how they needed to pay OT. I didn’t want to rock the boat too much, since I valued having a job myself, but I was as clear as possible without pushing the wrong buttons. The CEO, who I’m sure knew the law, made excuses and just ignored the issue. I always tried to take care of my people as much as possible with bonuses and other incentives I had control over.

In any case, there were a lot of changes in my tenure and eventually they brought on a new COO that I reported to. I mentioned my concerns to him. Low and behold, he ends up getting canned a few months later. All of a sudden, we have an HR consultant brought in to evaluate our labor practices. I find out that the COO, knowing he was getting fired (which was well earned since he was an incompetent douche bag), had mentioned the labor issues to the CEO the day before his termination, knowing full well what was going to happen the next day. When they let him go, he sued the company under the whistle blower law saying he was fired because he brought up the OT issue and it was retaliatory. Yeah, he was a schmuck.

Anyway, the HR consultant basically told them that they were grossly non-compliant with the law. About half the company was shortly thereafter reclassified as hourly non-exempt and started getting overtime. A lot of other positive improvements came out of it. Unfortunately, the ex-COO also got some benefits from the situation – not sure all the details, but I know they settled out of court and there was compensation involved. While I’m a bit disappointed that he ended up taking advantage of the situation, I was happy to see that my complaint finally resulted in changes that helped out a lot of people.

Fortunately, I now work for a company that not only follows the law, but is also very focused on caring for its employees. The senior engineers are all salaried and exempted, as are the executives, but everyone else is hourly and non-exempt. While it would be nice to get overtime, since we do work a lot of nights and weekends, and I think that the ‘computer employee’ interpretation is a bit too general for its intention, we all get compensated very well in terms of both salary and other benefits.

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