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Tina
Tina, Lawyer
Category: Employment Law
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Experience:  JD, BBA, recognized by ABA for excellence.
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Would a web designer/web developer be considered exempt for

Resolved Question:

Would a web designer/web developer be considered exempt for FLSA purposes?
Submitted: 10 months ago.
Category: Employment Law
Expert:  Tina replied 10 months ago.

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. Before I can give you an accurate answer to your question, please provide the following additional information:

How much does the designer/developer earn annually? Does he/she have a degree?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 10 months ago.

The designer earns approximately $30,000.00 per year. He does not have a degree.

Expert:  Tina replied 10 months ago.
I see. Thank you for clarifying that for me, Stephanie.

Under the FLSA, to qualify for the computer employee exemption, the employee must meet the skills test as well as the salary test as set forth below:

To qualify for the computer employee exemption, the following tests must be met:

  • The employee must be compensated either on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;
  • The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;
  • 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.

So depending on how you pay the employee (weekly/hourly) and whether he meets the skills test, he could be exempt from overtime pay under the FLSA.

Keep in mind though that if the employee works in CA, CA law applies and does have a higher threshold for determining whether the employee is exempt from overtime pay. For 2013, the employee must make at least $39.90 per hour to be considered exempt.

Here is a link which sets out this requirement:

http://www.calchamber.com/headlines/pages/11132012-stateannounces2013ratesforovertimeexemptions.aspx

I hope this helps clarify the situation for you. My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Kindly rate my service when I have answered your questions so I will be compensated for my time assisting you. Thank you!

Tina

Customer: replied 10 months ago.

The employee designs, creates, and modifies web sites. Does that count as a computer system or program?


 


And I am to understand that it is irrelevant if he has a degree or not?

Expert:  Tina replied 10 months ago.

No it's not irrelevant, but it usually helps if they have a degree. Since he does not, you would typically need to take a more critical view of the skills test (assuming he does meet the salary test).

If the worker does not actually design, create or modify programs and has no degree, he would not typically be exempt from overtime unfortunately.

I hope this helps clarify the situation for you. My goal is to provide you with excellent service – if you feel you have received anything less, please reply back as I am happy to address follow-up questions. Kindly rate my service when I have answered your questions so I will be compensated for my time assisting you. Thank you!

Tina



Tina, Lawyer
Category: Employment Law
Satisfied Customers: 32121
Experience: JD, BBA, recognized by ABA for excellence.
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