Doug Weiner and Meg Thering, in the Wage Hour Defense Blog, recently commented on the introduction of the Computer Professionals Update Act in the US Senate on October 20, 2011. They posit that this is a good development for employers, as employers would be more easily able to classify employees as exempt under the computer exemption.
The new legislation would expand the coverage of the exemption to individuals who work 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." Also, employees who direct the work of individuals performing these duties would be exempt.
I welcome this development. I have had numerous cases and matters for clients where the focus has been whether certain computer employees were exempt or not. There are many fine lines in undertaking this analysis, almost as many as there are titles in this field. The employer is forever placed in the difficult position of having to make a judgment call ion the exemption question and if it is proven wrong. almost astronomical liability is the result, as these workers are often earning very good compensation (whether at an hourly rate or a salary). To take the more conservative approach and simply treat the workers as non-exempt is not the answer either because although it spares the employer the specter of a possible lawsuit (usually class action) it escalates the overtime outlays that the employer is subject to.
Now, if the legislation passes, employers will not be forced to make what are now very difficult decisions. I believe employers are, for the overwhelming most part, intent on doing the right thing and complying with the law. When the law is not easily amenable to reasonable interpretation and forecasting, that desire to comply is hampered. With this new law, employers may be able to correctly classify computer workers and not have to be stressed out over whether they will be hit with a FLSA class action.
To be continued...