IT Personnel (National) Confusion Over Overtime

Washington, DCMost attorneys agree that most of the time, it is an 'open and shut' case whether employees are exempt from the federal requirements of overtime law. But about 30 percent of cases are not so easy to determine, and IT personnel overtime (National) often fall into these 'gray areas'.

Typically, IT personnel perform multiple functions, from conducting basic help desk functions, to assisting employees with computer problems, to analyzing hardware and software performance, to recommending departmental equipment purchases. Their primary function is usually "troubleshooting" as needed to ensure consistent operation of the company's network infrastructure, and when something goes wrong, they are at the forefront. They are usually called upon after regular hours if their employer has a glitch in a computer system, and that usually amounts to significant overtime hours.

Many employers anticipate these kinds of troubleshooting problems and classify their employees as exempt. For instance, support personnel are often called upon to carry a cellular phone from 6 p.m. to 6 a.m. on weekdays and all day on weekends and holidays, and must answer the phone if a customer has a problem when the main support desk is closed. They are full-time, salaried staff working 40-hour weeks.

The Fair Labor Standards Act, which grants overtime for work in excess of a 40-hour workweek, applies only to hourly, non- management workers, but herein lies the problem: are the IT Personnel being mislabeled as professional employees when they are really hourly workers who should be eligible for overtime pay?

Anticipating the employer, the U.S. Department of Labor (DOL) has made it clear that this kind of troubleshooting is usually not an exempt function. Furthermore, the DOL states that IT Personnel won't be classified as exempt unless they have the authority to make significant decisions—this statement particularly applies to IT personnel nationwide who report to a supervisor and that supervisor makes important decisions on network administration.

(The DOL recently concluded that certain IT support specialists (or "help desk" employees) aren't exempt from the FLSA's requirements and must be paid minimum wage and overtime.)

IT Personnel should not be assumed exempt just because other companies are doing it that way. Other companies are paying hefty penalties for misclassifying their employees.
In August, 2008 a lawsuit was filed against Apple computers alleging it cheats IT Personnel on overtime pay.

According to the suit, one employee was routinely forced to work more than 40 hours per week, missed meals, and often had to spend evenings and entire weekends on call without receiving an extra dollar of pay. His attorneys contend that he, and other Apple IT workers, were purposefully misclassified as management by the company so it could avoid paying them overtime rates that California legally requires for non-management personnel and also to avoid lawsuits.

Court papers say that Apple "intentionally and deliberately created numerous job levels and a multitude of job titles ... to create a roadblock to discovery and class certification for all employees similarly classified as exempt."

Attorneys who represent employees are also targeting IT positions for potential wage and hour class actions. A lawyer can determine if the job is properly designated, or call the state or federal wage- and-hour office. The volume and duration of work performed on call would determine whether it fit the criteria for overtime pay, which is 1 1/2 times regular hourly pay.