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:
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