Employers who classify IT employees as exempt under the computer professional exemption should make sure those employees qualify for the exemption.
For a Limited Time receive a
FREE Compensation Market Analysis Report! Find out how much you should be paying to attract and retain the best applicants and employees, with
customized information for your industry, location, and job.
Get Your Report Now!That is because plaintiffs' attorneys have had significant recent success challenging the exempt status of large groups of computer employees, Joseph K. Mulherin, Esq., explained in a BLR webinar titled "Exempt or Nonexempt? How To Avoid the Misclassification Mistakes You Simply Can't Afford To Make":
- IBM settled an overtime class-action lawsuit filed on behalf of 32,000 technical service and IT employees for $65 million.
- Siebel Systems settled a California state lawsuit filed on behalf of 800 systems engineers for $27.5 million.
- EA settled a lawsuit filed by game developers for $14.9 million.
Individual state laws make it even more precarious for employers in classifying computer employees because when state and federal law differ, employers must follow the law more favorable to the employee:
- California's computer professional exemption, for example, not only requires employees to meet the federal requirements, but also to be (i) highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering and (ii) primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.
- Pennsylvania does not have a computer professional exemption, thus requiring employers to consider whether their computer employees are exempt under the administrative, executive or professional exemptions.
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.