Although certain IT employees will certainly qualify for the computer professional exemption, do not assume that every IT employee will.

In a BLR webinar titled "Exempt or Nonexempt? How To Avoid the Misclassification Mistakes You Simply Can't Afford To Make," Joseph K. Mulherin, Esq., explained that many organizations operate under what a federal appellate court judge called the "common misperception that all jobs involving computers are necessarily highly complex and require exceptional expertise." Martin v. Indiana Michigan Power Co.

One plaintiff's lawyer aptly proclaimed on his website that "the Computer Professional exemption is the one that employers frequently make mistakes on. You will see that it is very difficult to meet."

This is a big potential problem area for many companies:

• The FLSA's computer employee exemption applies only to a narrow group including "computer systems analysts, computer programmers, software engineers or other similarly skilled workers."
• Employees whose work is highly dependent on computer software programs and who are skilled in computer-aided design software, but who are not engaged in computer systems analysis or programming are not exempt.

The DOL made very clear in a recent opinion letter that help desk employees are not exempt under the FLSA. Consistent with the DOL's guidance, the courts have interpreted the exemption very narrowly:

• For example, a federal district court found that a technically proficient help desk employee whose primary duty was customer service was not exempt even though some of the employee's tasks could be described as "consulting," "analysis" or "testing" related to computers.
• Another federal district court determined that a computer programmer was exempt where he maintained and supported pre-existing software applications. Although the employee was instructed by his employer what particular software modifications were needed, the employee chose the computer language and how to code the modifications.
• A federal court also found the plaintiff exempt where he had earned two advanced technical certifications, his responsibilities included ensuring that users had adequate storage capacity on the company servers, he supervised approximately 50 to 60 physical servers and 1,500 virtual servers, he created plans to add servers to IT infrastructure, and he solved complex server problems.

Joseph K. Mulherin, Esq., is a senior associate in the Labor and Employment Practice Area at Vedder Price PC. Based out of the firm's Chicago office, he counsels and represents public- and private-sector employers nationwide in a variety of traditional labor and employment law matters. Mulherin has significant experience with wage and hour matters, having counseled clients on a multitude of issues and successfully litigated numerous single-plaintiff cases and large class actions. He can be contacted at jmulherin@vedderprice.com.