Abstract
The widespread practice of treating most information technology employees as exempt from overtime pay rests on a shaky legal foundation. In recent years, plaintiffs’ lawyers have forced major employers to pay millions of dollars to various categories of IT employees who claimed that they were legally entitled to overtime pay. Determining which IT employees are truly exempt from the requirement of overtime pay can be challenging, but a careful analysis of the law allows some tentative conclusions to be drawn. Employers of IT employees would be well advised to assess their overtime exposure and consider options for reducing it.
Get full access to this article
View all access options for this article.
References
1.
See 29 U.S.C. § 213(a)(17); 29 C.F.R. § 541.400(b).
2.
See 29 C.F.R. § 541.100.
3.
See 29 C.F.R. § 541.200.
4.
See 29 C.F.R. § 541.300. There are also alternative versions of the professional exemption for employees whose primary duty is the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor and for teachers or instructors who work for schools or other educational establishments. See 29 C.F.R. § 541.302 & 541.303. These exemptions might apply to a very small fraction of IT employees. Similarly, a very small number of IT employees might qualify for the outside sales exemption, which applies to an employee whose primary duty is sales and who is "customarily and regularly engaged away from the employer’s place or places of business" in performing such primary duty. See 29 C.F.R. § 541.500.
5.
See 29 C.F.R. § 541.601.