- The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment.
- The employee is highly skilled and proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming and software engineering.
Further, the employee’s primary duties must consist of one, or more, of the following:
- Application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications.
- Design, development, documentation, analysis, creation, testing or modification of computer systems based on and related to user or system design specifications.
- Responsible for documenting, testing, creating or modifying computer programs related to the design of software or hardware for computer operating systems.
The exemption does not apply to an employee if any of the following apply:
- The employee is a trainee or an employee in an entry-level position;
- The employee has not attained the level of skill and expertise necessary to work independently and without close supervision;
- The employee is engaged in the operation of computers;
- The employee is engaged in the repair or maintenance of hardware;
- The employee is engaged in the manufacturing of computers;
- The employee is an engineer, drafter, machinist or another professional whose work is highly dependent on the use of computer software programs (e.g., CAD);
- The employee creates manuals, instruction, website content, or other written materials associated with computer use;
- The employee creates imagery for use in the motion picture, television or theatrical industry.
The duties test required an in-depth analysis of the employee’s actual job duties. What is clear, is that just because an employee is paid sufficient hourly pay or salary his or her duties may bar the exemption from applying based on the employee’s experience level, skill and actual duties.