EMPLOYMENT LAW: IT support specialists would be non-exempt

.: Acorn Networks :. In response to an employer that was in the process of creating a new IT Support Specialist position, the Wage & Hour Administrator issued an opinion letter advising that the new position, as described, would not qualify for the administrative or computer employee exemption to the Fair Labor Standards Act under the revised white-collar exemption rules (W & H Opinion Letter No 2538 (FLSA2006-42)).
The employer plans to have shifts of IT Support Specialists working or on-call 24 hours a day. According to the job description provided to the agency, the IT Support Specialist (renamed from Help Desk Support Specialist) would be responsible for the diagnosis of computer-related problems as requested by employees, physicians, and contractors. The IT Support Specialist conducts problem analysis and research, troubleshoots, and resolves complex problems either in person or by using remote software. The position requires a high school diploma or GED, although an associate degree is preferred.
Administrative exemption. The Wage and Hour Administrator concluded, based on the information provided by the employer, that the IT Support Specialist position did not qualify for the administrative exemption under Section 13(a)(1) of the FLSA. Although minor aspects of the work reportedly include participating in the design of client configurations and analyzing and selecting new technology, the tasks performed and the decisions made by an IT Support Specialist does not demonstrate that their primary duty includes the exercise of discretion and independent judgment with respect to matters of significance to management or general business operations of the employer. To qualify for the administrative exemption, however, such a showing is necessary.
"The primary duty of the IT Support Specialist you describe consists of installing, configuring, testing, and troubleshooting computer applications, networks, and hardware. Maintaining a computer system and testing by various systematic routines to see that a particular piece of computer equipment or computer application is working properly according to the specifications designed by others are examples of work that lacks the requisite exercise of discretion and independent judgment within the meaning of the administrative exemption," the Wage and Hour Administrator wrote. "Employees performing such activities are using skills and procedures or techniques acquired by special training or experience. Their duties do not involve, with respect to matters of significance, the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered as required by [the white-collar exemption rules]."
Computer employee exemption. The Wage and Hour Administrator also concluded that the primary duty of the IT Support Specialist does not consist of duties similar to those discussed in the computer employee exemption regulations, and as such, the position does not qualify for the computer professional exemption under FLSA sections 13(a)(1) and 13(a)(17).
The white-collar exemption rules list employees who qualify for this exemption as including computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field. As explained in the preamble to the final rule, such job titles alone, however, are not the determining factor for exemption. An exempt computer employee's primary duty must consist of those duties discussed in 29 C.F.R. 541.400(b). These duties include:
the "application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications";
"[t]he 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";
"[t]he design, documentation, testing, creation or modification of computer programs related to machine operating systems"; or
"[a] combination of these duties, the performance of which requires the same level of skills."
The primary duty of the IT Support Specialist position as described, however, involved none of these roles. Thus, the computer exemption was inapplicable. The position, as delineated, would be nonexempt, the Wage and Hour Administrator advised.