Archive | January, 2014

Have You Checked Your IT Department Lately?

comp_exemptAs most employers know, the FLSA provides a computer professional cxemption; however, this tends to be one of the most misunderstood and misapplied exemptions.For an employee to qualify for the computer professional exemption, the following criteria must be met:

  1. The employee must be compensated either on a salary or fee basis at a rate not less than $455.00 per week or, if compensated on an hourly basis, at a rate of not less than $27.63 per hour.
  2. The employee must be employed as a computer systems analysis, computer programmer, software engineer, or other similarly skilled worker in the computer field performing the duties as described below:
  3. The employee’s primary duty must consist of:
  • the application of systems analysis techniques and procedures, including consulting with users to determine hardware, software or  system functional specifications;
  • 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;
  • the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
  • a combination of the aforementioned duties, the performance which requires the same level of skills.

This exemption does not include employees who are engaged in the manufacture or repair of computer hardware and related equipment. Further, employees whose work is highly dependent or facilitated by the use of a computer or computer software programs but who are not primarily engaged in computer systems analysis and programming or other similarly skilled occupations are also not exempt. Additionally, help desk employees are generally not considered to be exempt. Rather, this exemption is very specific and is specifically designed to only apply to certain IT professionals.  Accordingly, we recommend that all employers review their IT departments to ensure proper classification of their employees.

An Important Reminder to Employers About Job Descriptions

job_descFA recent Sixth Circuit case decision was issued which should serve as a reminder to all employers of the importance of double checking their written job descriptions to ensure they are accurate and enumerate the essential functions of each position. In December 2013, the Sixth Circuit partially reversed a District Court’s granting of summary judgment to an employer when it determined that there was an issue of material fact as to whether the employee could perform the essential functions of his position. In so ruling, the Sixth Circuit noted that the job function that the employee allegedly could not perform was not specifically listed in the written job description. On this basis, the Court determined there was a question as to whether it was an essential job function. The Sixth Circuit noted that the regulations accompanying the ADA provide seven (7) non-exclusive factors for determining whether a particular job function is essential:

  1. The employer’s judgment as to which functions are essential;
  2. Written job description prepared before advertising or interviewing applicants for the job;
  3. The amount of time spent on the job performing the function;
  4. The consequences of not requiring the incumbent employee to perform the function;
  5. The terms of the Collective Bargaining Agreement;
  6. The experience of past incumbents and their job and/or
  7. The current work experience of incumbents in similar jobs.

In this particular case, the employee was terminated when he was no longer able to drive the manual transmission vehicle which was utilized to haul the excavator to the work sites. The employer contended that the excavator operators (which included the employee) hauled the excavator to the work site approximately 70% of the time while other employees hauled the excavator the other 30% of the time. The employee had obtained a release to return to work with the restriction that he was limited to driving automatic transmission vehicles. The employer ultimately terminated his employment on the basis that he could not perform all essential functions of his job; however, the Sixth Circuit noted that none of the job descriptions for the position posted by the company during the employee’s tenure of employment referenced hauling the excavator or driving a manual transmission. Although the job description did contain a catch phrase of “other duties assigned”, the Court noted that not every other duty is an essential function of the position. The Court ultimately decided to reverse the Court’s granting of summary judgment for the employer on the grounds that there was an issue of material fact regarding whether the employee was qualified with or without accommodation to perform the essential functions of his job. Accordingly, this decision highlights the need for employers to review their written job descriptions to ensure they are up to date and outline all of the essential functions for each position within their company.