Governance May Help IT Staff Maintain Overtime Status

 
 
By P. J. Connolly  |  Posted 2011-12-05
 
 
 

There's a proposal floating around the U.S. Senate's committee on Health, Education, Labor and Pensions that would seriously rework the standards for who in IT is eligible for overtime. This bill, the so-called "Computer Professionals Update," or "CPU Act," on its face simply brings the existing job titles and work techniques that define exempt IT professionals up to contemporary practice. Although I'm not convinced that the CPU Act is likely to change anything drastically, there may be other things afoot that will better define the status of IT staffers.

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Essentially, the law as it is today calls for everyone whose main role is neither managerial nor creative to receive overtime pay; the bill (S.1747) adds specific language that could be seen as applying to junior sysadmins, DBAs and network administrators.The relevant text of the law (29 USC 213, subsection a, paragraph 17):

(17) any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker, whose primary duty is-

(A) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software, or system functional specifications;

(B) 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;

(C) the design, documentation, testing, creation, or modification of computer programs related to machine operating systems; or

(D) a combination of duties described in subparagraphs (A), (B), and (C) the performance of which requires the same level of skills, and

who, in the case of an employee who is compensated on an hourly basis, is compensated at a rate of not less than $27.63 an hour.

The CPU Act proposes that:
Section 13(a)(17) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(17)) is amended to read as follows:

(17) any employee working in a computer or information technology occupation (including, but not limited to, work related to computers, information systems, components, networks, software, hardware, databases, security, internet, intranet, or websites) as an analyst, programmer, engineer, designer, developer, administrator, or other similarly skilled worker, whose primary duty is--

(A) the application of systems, network or database analysis techniques and procedures, including consulting with users, to determine or modify hardware, software, network, database, or system functional specifications;

(B) the design, development, documentation, analysis, creation, testing, securing, configuration, integration, debugging, modification of computer or information technology, or enabling continuity of systems and applications;

(C) directing the work of individuals performing duties described in subparagraph (A) or (B), including training such individuals or leading teams performing such duties; or

(D) a combination of duties described in subparagraphs (A), (B), and (C), the performance of which requires the same level of skill;

who is compensated at an hourly rate of not less than $27.63 an hour or who is paid on a salary basis at a salary level as set forth by the Department of Labor in part 541 of title 29, Code of Federal Regulations. An employee described in this paragraph shall be considered an employee in a professional capacity pursuant to paragraph (1)

Although I'd rather be as specific as possible when defining exempt classifications, this proposal leaves plenty of room for abuse by unscrupulous employers, and that makes me nervous. But there is one small ray of hope, and this comes in the form of governance and compliance requirements, which can force IT departments to better define access and procedures. That in turn is good for junior and even mid-level admins, because workers who lack the freedom to take initiative are much harder to classify as exempt, even under the proposed changes to Federal law.

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