Portrait of an Exempt Computer Employee
How can an employer tell which computer employees are exempt from the overtime pay requirements? What does an exempt computer employee look like? They are a rare bird—but occasionally, computer employees may fit into one of the regulation’s exemptions.
The computer employee exemption exempts from overtime pay requirements such positions as computer systems analysts, programmers, software engineers, and other “similarly skilled” workers. In order to qualify for this exemption, the computer employee’s primary duties must be some combination of determining functional specifications for, or designing, developing, documenting, analyzing, creating, testing, or modifying, computer systems and programs.
The key is, what is their “primary duty”?. What does their job primarily exist to do? Performing these tasks occasionally is not enough. But, the exempt employee may perform a combination of these tasks to qualify for the overtime pay exemption.
What does such a “mixed use” exempt computer employee look like? Meet Tapas Sakar. In the recent case of Clarke v. JPMorgan Chase Bank N.A., Sakar claimed that he was misclassified as an exempt employee and should have been entitled to overtime pay. He based his claim in large part on his “escalation” work—that is, when a help desk problem escalated to him, which it did occasionally, he performed the same type of help-desk problem resolution as the non-exempt lower level help-desk employees.
Unfortunately for Sakar, escalation work accounted for less than ten percent of his time. The other 90+ percent of the time, Sakaar was—
• Coming up with and implementing strategies to manage date storage capacity for JPM’s New York City and Delaware operations
• Optimizing the ability of JPM staff across the NY and DE area to print
• Writing technical manuals
• Working on high-urgency special projects.
No single exempt function took a majority of his time, but even so, as the federal court held in Clarke, “Sakar falls squarely within the computer employee exemption.” That he sometimes responded to calls for help from JPM staff didn’t change the fact he recommended large equipment purchases and came up with technology plans followed by multi-million-, if not multi-billion-, dollar business units. And that no single one of his responsibilities would have been enough to qualify him for the exemption also didn’t change that fact that, in the aggregate, his primary duties were those that qualified him for the exemption.
So take a good look at Tapas Sakar. If a computer employee looks more-or-less like him, then even if he or she can’t be pigeonholed into a single of one of the computer employee exemption categories, the employer will still likely have arguments that the employee should be classified as exempt.
