OT and PTO / Vacation labor regulations

I currently work for an employee who has classified every employee as exempt. We are charged PTO / Vacation time in 1/2 day increments. As exempt employees we are not eligible for OT pay. Most of my colleagues believe that we are not properly classified. Our primary responsibilities are the reparation of desktop computers. We assist our clients via phone, email, remote tools, and face to face. On very rare occasions we will get involved with a server project or networking project. Typically our level of involvement is during the implementation of the particular server or network devices. Based on what I have been able to find in the labor laws, my company has not classified us properly as our primary job description is that of a computer repair technician.

1 answer  |  asked Dec 13, 2006 1:30 PM [EST]  |  applies to Ohio

Answers (1)

Neil Klingshirn
You may be entitled to overtime pay

Federal regulations exempt "computer employees" from overtime payment if such employees are "paid on a salaried basis" at least $455 per week and perform duties that are exempt. Charging for half days off or PTO may violate the payment on a salaried basis requirement, although I need to know more about how your employer pays vacation and PTO. In addition, the salaried basis test may be met if you are paid more than $27.65 an hour.

However, your description of your duties suggests that your duties are not exempt. Specifically, 29 CFR 541.400 states that the computer employee exemption applies to:

a computer employee whose primary duty consists 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.

However the exemption does not apply (29 CFR section 541.401) to the:

Computer manufacture and repair.
The exemption for employees in computer occupations does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in section 541.400(b), are also not exempt computer professionals.

So, if you believe that you are not paid a salary or wage that is high enough, are not paid on a salary basis or do not perform exempt duties, give me a call to discuss what would be involved in pursuing an overtime claim.

Best regards,

Neil Klingshirn

posted by Neil Klingshirn  |  Dec 13, 2006 2:18 PM [EST]

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