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Why is U.S Senator Kay Hagan trying to eliminate OT for IT workers?

The Senator, a Democrat from North Carolina, introduced legislation in October that would amend the Fair Labor Standards Act to place most information technology employees in a category that is exempt from receiving overtime. Why?

I wish I had a decent, rational answer to the “why”, because I cannot figure out how this 1) helps the economy, or 2) helps working professionals in the IT field.  Here is the bill:

1st Session
S. 1747

To amend the Fair Labor Standards Act of 1938 to modify provisions relating to the exemption for computer systems analysts, computer programmers, software engineers, or other similarly skilled workers.

October 20, 2011

Mrs. HAGAN (for herself, Mr. ISAKSON, Mr. ENZI, and Mr. BENNET) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions


To amend the Fair Labor Standards Act of 1938 to modify provisions relating to the exemption for computer systems analysts, computer programmers, software engineers, or other similarly skilled workers.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the ‘Computer Professionals Update Act’ or the ‘CPU Act’.


Section 13(a)(17) of the Fair Labor Standards Act of 1938 (29 U.S.C. 213(a)(17)) is amended to read as follows:

‘(17) any employee working in a computer or information technology occupation (including, but not limited to, work related to computers, information systems, components, networks, software, hardware, databases, security, internet, intranet, or websites) as an analyst, programmer, engineer, designer, developer, administrator, or other similarly skilled

‘(A) the application of systems, network or database analysis techniques and procedures, including consulting with users, to determine or modify hardware, software, network, database, or system functional specifications;

‘(B) the design, development, documentation, analysis, creation, testing, securing, configuration, integration, debugging, modification of computer or information technology, or enabling continuity of systems and applications;

‘(C) directing the work of individuals performing duties described in subparagraph (A) or (B), including training such individuals or leading teams performing such duties; or

‘(D) a combination of duties described in subparagraphs (A), (B), and (C), the performance of which requires the same level of skill;

who is compensated at an hourly rate of not less than $27.63 an hour or who is paid on a salary basis at a salary level as set forth by the Department of Labor in part 541 of title 29, Code of Federal Regulations. An employee described in this paragraph shall be considered an employee in a professional capacity pursuant to paragraph (1).’.

Jill Clausen at Daily Kos:

So what does it mean to be “an employee in a professional capacity” under The Fair Labor Standards Act? It means your employer is exempt from having to pay you for your overtime hours.

Sec. 213
§ 213. Exemptions

(a) Minimum wage and maximum hour requirements

The provisions of sections 206 (except subsection (d) in the case of paragraph (1) of this subsection) and section 207 of this title shall not apply with respect to

(1) any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesman (as such terms are defined and delimited from time to time by regulations of the Secretary, subject to the provisions of subchapter II of chapter 5 of Title 5, except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in his workweek which he devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 per centum of his hours worked in the workweek are devoted to such activities);

In other words, as of today, Saturday, December 10, 2011, a person working in the IT profession who is paid hourly at any rate of pay, or who is salaried at a minimum of $23,660 per year, is entitled by law to be compensated for their overtime work that is in excess of 40 hours per week. That covers just about everyone working in IT.

If Ms. Hagan’s bill is passed, IT staff making $27.63 per hour or more, or $23,600 per year or more, will no longer be eligible for overtime compensation by law.

Backing up a bit — this is relevant to discuss that generally, IT jobs vary greatly — from the help desk person, to a programmer to a network engineer to a project manager, you’re talking apples and oranges. The first problem that comes to mind is the fate of the programmers who work on your favorite first-person shooter games. The creation of the most popular high-end games involve a LOT of person-hours; it’s not uncommon for a programmer to work 100+ hours in a week to get a game to release. What is going to result if none of those overtime hours are going to be paid? Well the work will not get done in time (after all, who is going to work for free), and it will cost the software company more since they will have to hire more staff to get the job done if no one is working overtime.

Unless, of course, they are made fully exemptmeaning you work until the job is done. The jobs would no longer be hourly, but salaried. I don’t see that in the above, but I’m not proficient at parsing legislation/legalese.

What I can say, since I work as a manager in IT (albeit in an academic setting, not corporate environment), is that all of my staff is salaried/exempt, therefore there is no overtime; of course as a manager, I am also exempt, and cannot be paid OT. However, the environment is not a production one, as is the case in most of the jobs in IT we’re talking about being affected by this legislation.

Research Triangle Park, here in NC is home to a huge number of IT workers in science, technical and medical fields, and would be profoundly affected by Hagan’s legislation. Would this mean even more IT jobs would convert from staff to consulting positions? This has been the way companies have gotten around paying health and fringes to programmers, for instance — just hire them on a contract basis and cut them loose when a project wraps or profits fall short.

This seems part of a larger attack on what has always been seen as a promising fields for a person to a make a good living for themselves and their family using highly developed, trained professional skill sets. How does this benefit the country, Senator Hagan? Or does it keep more profits in the pockets of corporations at the expense of the 99%?

Senator Hagan, please explain to me how this helps our state?

??? Phone Senator Hagan’s offices ???

DC Office: 202-224-6342 Greensboro Office: 336-333-5311
Raleigh Office: 919-856-4630 Charlotte Office: 704-334-2448
Asheville Office: 828-257-6510 Greenville Office: 252-754-0707



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Pam Spaulding

Pam Spaulding