Overtime

Computer Professionals Exempt from Overtime Pay

Posted by on Oct 10, 2013 in Overtime | 2 comments

Most states closely follow the rules and regulations as they are set down in the Fair Labor Standards Act (FLSA). As such, the exemptions from overtime pay is also followed, including the sections that describe some computer or information technology employees who are considered professionals and defined under the Electronic Code of Federal Regulations Part 541 Subsection E (updated as of March 21, 2013) which states:

“Computer systems analysts, computer programmers, software engineers or other similarly skilled workers in the computer field are eligible for exemption as professionals under section 13(a)(1) of the Act and under section 13(a)(17) of the Act.” The “Act” refers to the FLSA.

and

“The section 13(a)(1) exemption applies to any computer employee compensated on a salary or fee basis at a rate of not less than $455 per week (or $380 per week, if employed in American Samoa by employers other than the Federal Government), exclusive of board, lodging or other facilities, and the section 13(a)(17) exemption applies to any computer employee compensated on an hourly basis at a rate not less than $27.63 an hour.”

However, having a job title that is included in the above passages does not mean the employee is automatically exempted from overtime pay. Both the FLSA and eCFR specify the primary duties of a computer-related employee which include:

  • System analysis application, procedures, consultations with regard to system or software functions
  • Computer system or program design, analysis, development, testing, modification, documentation or creation related to user systems, system design or machine operating systems

Moreover, a computer-related professional should not use more than 20% of work hours engaged in non-primary functions. Excluded in these definitions are employees engaged in computer part manufacturing or repair, and whose computer use does not involve the design, programming or system analysis of software. So a data encoder, for example, is not considered exempted from the overtime law in many states.

Facing a lawsuit from an employee who does not feel as though he or she is being compensated adequately can be incredibly costly. If you do not know if any of your employees are exempt from overtime pay, it is important to get in touch with a business attorney to make sure you are in compliance with payroll laws in your state.

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Pharmaceutical Sales Reps Don’t Sell but are Still Overtime Exempt

Posted by on Mar 28, 2013 in Overtime | 0 comments

Pharmaceutical Sales Reps Don’t Sell but are Still Overtime Exempt

A 2011 decision by the Ninth Circuit established that pharmaceutical sales representatives (PSRs) are considered “outside sales“ employees and therefore exempt from overtime pay although they don’t actually sell products but only promote their prescription or product to doctors. The decision affirmed the long-standing opinion of the Department of Labor that considers the peculiar nature of the work of PSRs, who are not allowed to sell prescription drugs directly to consumers. For all intents and purposes, the promotion of prescription drugs to doctors constitutes a sale.

Outside sales personnel are defined specifically and extensively under the Fair Labor Standards Act (FLSA) as exempt from overtime pay under federal law. A person may qualify as outside sales personnel if:

  • The primary duties are to get new order or contracts – making sales – for goods, services or use of facilities
  • Business is “customarily and regularly” conducted outside the employer’s office/s or business premises (excludes telesales, online sales, mail-order sales and home-based sales)

Aside from being exempt from overtime pay, outside sales personnel are also not covered by the minimum wage law, which in many states is the same as the current FLSA minimum wage. Instead, outside sales personnel may be paid by salary, commission, fee, bonus, piece or a combination of two or more types of compensation. There are no federal or state laws requiring minimum compensation for this type of employee.

However, if you or someone you know do not fit the criteria for outside sales personnel i.e. you sell products, services or use of facilities but do so within the business premises of the employer, and yet are denied overtime pay, it’s possible that you are not being compensated as required by law. Consult with an overtime attorney if your case has merit and if you should pursue a complaint against your employer.

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