- Do blue collar workers who have great expertise in their respective jobs fall under the professional overtime exemption under FLSA?
- Do computer programmers and computer system analysts qualify as professionals and exempt from FLSA's overtime provisions?
- In an FLSA case, who has the burden of proof to show that an employee is exempt from the overtime pay benefit?
- What is the "taxicab exemption"?
- What is a "Belo" contract?
- What about employees receiving tips and how they are treated under FLSA?
- What is the key factor in determining whether employees may be included in a valid tip pool?
Do blue collar workers who have great expertise in their respective jobs fall under the professional overtime exemption under FLSA?
No, federal regulations provide that the professional exemption does not apply to "manual laborers" and "blue collar" workers who engage in repetitive tasks with their "hands, physical skill and energy." The regulation in question further provides that such blue collar workers "gain the skills and knowledge required for performance of their routine manual and physical work through apprenticeships and on-the-job training, not through the prolonged course of specialized intellectual instruction required for exempt learned professional employees such as medical doctors, architects and archeologists."
Do computer programmers and computer system analysts qualify as professionals and exempt from FLSA's overtime provisions?
It depends on the nature of the computer programmer's job and whether he or she fits under a 1996 amendment to FLSA specifically addressing computer programmers. It depends on whether the employee's primary duties related to "the application of systems analysis techniques and procedures" and whether they make at least $27.63 an hour.
In an FLSA case, who has the burden of proof to show that an employee is exempt from the overtime pay benefit?
Employers have the burden of proof to prove by clear and convincing evidence that an employee fits into an exemption, relieving the employer of having to pay
If a blue collar worker is considered particularly skilled in his or her trade, he or she is still considered a manual labor and, thus, does not qualify for the professional overtime exemption (iStock).
overtime. For example, if an employer claims that an executive secretary fits within a FLSA exemption, the employer must show that the employee performed managerial and administrative duties, as opposed to mostly clerical duties. If an employee performs primarily clerical duties and secretarial work, a jury may find that the employee was entitled to overtime pay.
What is the "taxicab exemption"?
It is, as the name suggests, an exemption under the overtime provisions of FLSA for taxicab drivers.
What is a "Belo" contract?
A Belo contract refers to a contract in which an employer offers a guaranteed weekly salary to an employee who works irregular hours. It comes from the United States Supreme Court decision Walling v. A.H. Belo Corp. (1942), which upheld an employer's attempt to comply with the letter and spirit of the FLSA by providing payments to workers who labored an irregular number of hours each week.
What about employees receiving tips and how they are treated under FLSA?
Tipped employees are those who regularly earn more $30 per month in tips. Under the FLSA, employers only need to guarantee $2.13 per hour to tipped employees. If the employee's tips and $2.13 per hour do not add up to the minimum wage under FLSA, then the employer must make up the difference. For more information on tipping and FLSA, see the Department of Labor's Fact Sheet on the subject at dol.gov/ esa/whd/regs/compliance/whdfs15.pdf.
Much litigation currently occurs in American courts regarding tipped employees. Much of the litigation centers on the legality of various tipping pool arrangements that force tipped employees to share their tips with other workers, including some who do not deal directly with customers. In some cases, the courts have ruled that such tip sharing agreements violate the FLSA.
What is the key factor in determining whether employees may be included in a valid tip pool?
The key factor in determining whether certain employees can be included in a valid tip pool is their level of interaction with customers. For example, a federal district court in Florida recently ruled that card dealers could not be forced to share tips with cardroom floor supervisors who did not interact much with customers in the gaming establishment (see LegalSpeak, p. 262).
LegalSpeak: Computer Systems Analyst Exemption in FLSA—29 U.S.C. 213
(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.
LegalSpeak: Belo Contract Provision in the FLSA
Employment necessitating irregular hours of work
No employer shall be deemed to have violated subsection (a) of this section by employing any employee for a workweek in excess of the maximum workweek applicable to such employee under subsection (a) of this section if such employee is employed pursuant to a bona fide individual contract, or pursuant to an agreement made as a result of collective bargaining by representatives of employees, if the duties of such employee necessitate irregular hours of work, and the contract or agreement (1) specifies a regular rate of pay of not less than the minimum hourly rate provided in subsection (a) or (b) of section 206 of this title (whichever may be applicable) and compensation at not less than one and one-half times such rate for all hours worked in excess of such maximum workweek, and (2) provides a weekly guarantee of pay for not more than sixty hours based on the rates so specified.