I've been doing some reading about salaried exempt, salaried nonexempt, and hourly employees; on this SE as well as other sites.

I'm not clear on one point: using an example of computer programmers/developers/etc. does a particular company decide to offer a position as salaried exempt, or is that decision pre-empted by the FLSA?

For a more specific (but imaginary) example, could a company offer me an hourly position as an Android developer? Or does the law force them to only hire me as a salaried exempt employee?

I've seen similar verbiage on all references, and this is from dol.gov, emphasis mine:

The following are examples of employees exempt from both the minimum wage and overtime pay requirements:

Executive, administrative, and professional employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, and certain skilled computer professionals (as defined in the Department of Labor's regulations)

Employees of certain seasonal amusement or recreational establishments

Employees of certain small newspapers and switchboard operators of small telephone companies

Seamen employed on foreign vessels

Employees engaged in fishing operations

Employees engaged in newspaper delivery

Farm workers employed on small farms (i.e., those that used less than 500 "man days" of farm labor in any calendar quarter of the preceding calendar year)

Casual babysitters

Persons employed solely by the individual receiving services (not an agency, non-profit, or other third party employer) primarily providing fellowship and protection (companionship services) to seniors and/or individuals with injuries, illnesses, or disabilities

See also: https://webapps.dol.gov/elaws/faq/esa/flsa/011.htm

  • I think this heavily depends on the company, the job you seek, the contract they offer, and how you negotiate this... also, It will depend on local, state laws...
    – DarkCygnus
    Sep 27, 2018 at 18:29
  • "as defined in the Department of Labor's regulations" I guess you'd have to look at that bit of information as well. And now I'm wondering if I'm getting hosed....
    – user41891
    Sep 27, 2018 at 18:34
  • I tracked down what they considered a programmer and it seemed to match reality, and IIRC excluded IT staff. That was yesterday and on a different PC, so I can't provide the link at the moment. Sep 27, 2018 at 18:36
  • Check out this: dol.gov/whd/overtime/fs17e_computer.htm
    – user41891
    Sep 27, 2018 at 18:37
  • Yep, that was it. So now you'll be able to tell if you're getting screwed. :D Sep 27, 2018 at 18:38

3 Answers 3


Yes, absolutely, you can be a purely hourly employee as a programmer. I've personally done that with several employers. Its just a matter of getting the potential employer to agree to those terms as opposed to a salaried position. The rules about overtime and exempt employees are there because most people prefer salaried positions. Mind you, as an hourly employee, you'd likely not get paid holidays, sick days, or even a guaranteed paycheck when there is no work to do. Its a trade off.

Also note, many programmers are actually contractors, even if operating essentially as employees, who normally are paid strictly by the hour.


Your quote says that certain computer professionals are exempt from the minimum wage law and legally mandates on overtime. This means such professionals can be salaried without regard to time actually worked, and that extra work can be expected out of them. It doesn't mean you and a company can't work out a deal whereby you're paid by the hour and get time-and-a-half overtime, The law doesn't require you to be salaried; it allows you to be salaried.


Labor laws are generally minimum requirements, not maximum. And the ones that are maximum (such as those mandating how many hours a person can drive in a day) can generally be rephrased as minimums as in no less than 14 hours of non-driving time in a 24 hour period. Which is a long way of saying that there is no legal upper limit on how much they can pay an hourly worker. It’s just that at some point it will be cheaper to do something else.

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