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 '18 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.... – SiXandSeven8ths Sep 27 '18 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. – YetAnotherRandomUser Sep 27 '18 at 18:36
  • Check out this: dol.gov/whd/overtime/fs17e_computer.htm – SiXandSeven8ths Sep 27 '18 at 18:37
  • Yep, that was it. So now you'll be able to tell if you're getting screwed. :D – YetAnotherRandomUser Sep 27 '18 at 18:38

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.


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.


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.


According to the Department of Labor:

Section 13(a)(1) and Section 13(a)(17) of the FLSA provide an exemption from both minimum wage and overtime pay for computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field who meet certain tests regarding their job duties and who are paid at least $455* per week on a salary basis or paid on an hourly basis, at a rate not less than $27.63 an hour.


To qualify for the computer employee exemption, the following tests must be met:

The employee must be compensated either on a salary or fee basis at a rate not less than $455* per week or, if compensated on an hourly basis, at a rate not less than $27.63 an hour;

The employee must be employed as a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field performing the duties described below;

The employee’s primary duty must consist of:

The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;

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;

The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or A combination of the aforementioned duties, the performance of which requires the same level of skills.

The computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment. Employees whose work is highly dependent upon, or facilitated by, the use of computers and computer software programs (e.g., engineers, drafters and others skilled in computer-aided design software), but who are not primarily engaged in computer systems analysis and programming or other similarly skilled computer-related occupations identified in the primary duties test described above, are also not exempt under the computer employee exemption.

Key piece:

Job titles do not determine exempt status.

  • Yes, got that far. What's not clear is if the employer can still offer a job as salaried nonexempt or just hourly, or if they are mandated to offer the job as salaried exempt. – YetAnotherRandomUser Sep 27 '18 at 18:46
  • It provides for an exemption. It doesn't mandate that you are exempt. That would be determined locally or at the state level. – SiXandSeven8ths Sep 27 '18 at 18:58

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.