On Tuesday, November 7, TechServe Alliance CEO Mark Roberts submitted comments to the Department of Labor (DOL) on the Proposed Rule, “Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees,” the “Overtime Regulation.” DOL received over 22,000 comments from individuals and stakeholders, including small businesses, educational organizations, associations, and nonprofits.
The Proposed Rule includes several key changes to significantly raise the salary cut-off for requiring overtime from $684/week ($35,568/year) to at least $1,059/week ($55,068/year); raise the exemption for highly compensated employees from $107,432 to $143,988; automatically update the salary levels every three years; and cap at 10 percent the amount of non-discretionary bonuses and incentive payments counted toward the standard salary level test.
The Proposed Rule would not impact computer professionals paid at least $27.63/hour and perform certain duties. Salaried computer workers will only be exempt if they meet the salary and duties test applicable to EAP exemptions. The Proposed Rule does not change the “duties” test.
Roberts urged the DOL to consider expanding the duties test for computer employees in this or future rulemaking, requiring notice-and-comment rulemaking at a maximum of every four years to adjust salary levels, clarifying the status of staffing firm recruiters and account managers as exempt administrative employees, and increasing the level of non-discretionary bonuses to a minimum of 25 percent up to 100 percent of salary.
Roberts noted, “The duties test for computer professionals was codified over 20 years ago and does not reflect the current state of the industry or rapidly changing technology. In many cases, these limited duty descriptions do not provide the clarity or flexibility to determine whether a computer professional in today’s world can be classified as exempt.3F” Roberts noted that the field of AI provides an excellent example of the expansion of professional computer-related work not necessarily performed by “computer system analysts, computer programmers, software engineers, or similarly skilled workers in the computer field.”
