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Thread: Re: Exempt vs Non-Exempt

  1. #11
    Forum Manager, Administrator Ed Jobe's Avatar
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    Question Re: Re: Exempt vs Non-Exempt

    Pruned from existing thread.
    Ok, I am very happy to be put in the position of having to ask this question.
    (I have a job offer, and the manager has told me there will definitely be extra hours.)

    In the US, is a CAD Drafter / Detailer / Designer (does not manage others), working out construction details and preparing shop or construction drawings, considered a "non-exempt" employee, with overtime priviledges, or an "exempt" employee, exempt from the requirements to be paid overtime?
    How many hours can they get away with making a salaried person work?
    Is there any amount of hours over which they are then required to pay a salaried person overtime as well?

    I have studied the Department of Labor's web site and even a video on the subject, and the main grey area, to me, is whether a skilled drafter is considered to be an "Administrative", "Professional", "Computer", or "Construction" worker.

    Without going into the DOL / details, are Cad Monkeys considered to be white collar or blue collar?
    Last edited by Ed Jobe; 2010-07-29 at 02:39 PM. Reason: request of O.P.
    C:> ED WORKING....

  2. #12
    Forum Manager, Administrator Ed Jobe's Avatar
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    Default Re: Re: Exempt vs Non-Exempt

    Pruned from existing thread.
    Just spoke to someone named US GOVERNMENT (on my caller ID -kinda scary).
    Cad people are not necessarily professionally trained like engineers, etc., so whether the employer can call you exempt boils down to job duties. The Wage and Hour division has some general fact sheets describing these things.
    The gov't lady did clarify one thing. Say you are non-exempt, entitled to overtime, and you agree to work a 50 hour week at $500, which works out to $10 per hour. You would still be entitled to $15/hr for anything over 40 hours, which means that technically, they would have to pay you $550 per week (the original $500 plus 10x ($10x.5). How's that for a loophole?!
    Explored just quit, so I gotta go.
    C:> ED WORKING....

  3. #13
    Forum Manager, Administrator Ed Jobe's Avatar
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    Default Re: Re: Exempt vs Non-Exempt

    Pruned from exising thread.
    I have found out that the new place calls this an exempt position, so I don't have a choice in the matter, and after only 2 months being employed this year, I think I'm in no position to question things. I could grill them further on the required hours and such, but they can still withdraw the offer if I make too much of an issue of it.
    As I said, it boils down to how the employer interprets the job duties, as weighed against the government's description of what activities qualify for exempt status, and tis is those, in a nutshell:

    Administrative Exemptions
    To qualify for the administrative employee exemption, all of the following tests must be met:
    The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
    The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and The employee’s primary duty includes the exercise of discretion and independent judgment with respect
    to matters of significance.
    Professional Exemption
    To qualify for the learned professional employee exemption, all of the following tests must be met:
    The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
    The employee’s primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
    The advanced knowledge must be in a field of science or learning; and
    The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.
    Creative Professional Exemption
    To qualify for the creative professional employee exemption, all of the following tests must be met:
    The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not
    less than $455 per week;
    The employee’s primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.
    Computer Employee Exemption
    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 (as defined in the regulations) 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:
    1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
    2) 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;
    3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or 4) A combination of the aforementioned duties, the performance of which requires the same level of skills.

    Subject to interpretation. I just brought it up in the hopes that some cad manager had delt with these issues.
    C:> ED WORKING....

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    Forum Manager, Administrator Ed Jobe's Avatar
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    Default Re: Re: Exempt vs Non-Exempt

    Pruned from exising thread.

    OK here's the stuff from the DoL that I was looking for that actually includes "drafters" in the wordage. It's in with the Computer-Related Occupations classification. The new job calls my position a Professional, which is breifly described in the previous post.

    These quotes come from the following link:
    http://www.dol.gov/esa/whd/regs/comp..._exemption.htm

    So, I have two college degrees, but I am mostly self-taught or on-the-job trained in Architectural Millwork and the drafting of it, but for now, I'll go with the Professional designation, and see how it goes.

    However, 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.

    Job titles do not determine exempt status. In order for this exemption to apply, an employee’s specific job duties and compensation must meet all the requirements of the Department’s regulations. The specific requirements for the computer employee exemption are summarized below.

    Computer Employee Exemption
    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:
    1) The application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications;
    2) 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;
    3) The design, documentation, testing, creation or modification of computer programs related to machine operating systems; or
    4) 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.

    Primary Duty
    “Primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.

    Where to Obtain Additional Information
    For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243).
    When the state laws differ from the federal FLSA, an employer must comply with the standard most protective to employees. Links to your state labor department can be found at www.dol.gov/esa/contacts/state_of.htm.
    This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.
    U.S. Department of Labor
    Frances Perkins Building
    200 Constitution Avenue, NW
    Washington, DC 20210
    1-866-4-USWAGE
    TTY: 1-866-487-9243
    C:> ED WORKING....

  5. #15
    I could stop if I wanted to 09silverado's Avatar
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    Default Re: Re: Exempt vs Non-Exempt

    so let me get this right... if you are exempt (salary) then you should NOT be doing cad work as your primary job, correct?

    If you are doing engineering and cad work as your primary job, then you are supposed to be non-exempt by LAW.

    If this is true and it's provable there should be a lot of interesting conversations going on in this industry........... just saying.

    edit.
    this is contradictory to professional exemption and how do you separate the profession sleeping with the computer? The question becomes, how much professional work are you ACTUALLY doing, and who can prove it.
    Last edited by 09silverado; 2010-09-07 at 02:06 AM.
    Thank you kindly
    Lead Landscape Architect & CAD Manager
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    All AUGI, all the time TerribleTim's Avatar
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    Default Re: Re: Exempt vs Non-Exempt

    We have gone through this at my current firm at length.

    The short of it is this, and this is a quick way to understand the current labor laws -
    For salaried employees -
    If you have control over your own schedule and deadlines, you are NOT eligible for overtime compensation.
    If you have NO control over your schedule and deadlines, you ARE eligible for overtime compensation AND the employer is REQUIRED to compensate you accordingly.

    This goes for ALL salaried employees, regardless of job title, education level, etc. now, how they choose to compensate you is up to you and your employer to work out (could be comp time, could be paid time, etc).

    Hope that helps someone.
    Tim McDougald
    CAD/BIM Manager / Project Manager
    Clevenger Associates
    11803 101st Avenue Court East, Suite 203 - Puyallup, Washington 98373

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    Super Moderator david_peterson's Avatar
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    Default Re: Re: Exempt vs Non-Exempt

    Well stated, but if I set my own schedule for when I show up to work, the Client & PM sets the schedule for the deliverables' which for me (the structural guy) is different than the Archie due to early package that was requested by the Client and I can't get any info about what the building looks like until 1 week before it's due and then I have to spend 80hrs+ that week to put out a package. Do I get OT or not?
    Just putting that out there. While My engineers don't get to set the project schedule, they don't have a punch clock. there's no "You need to be in the office from 9-5" so in that sense they have control over their own schedule. But when I need to relay on the other guy to get information which he's producing according to his schedule........Well you can see where this goes.
    Anyway, Every state is a little different.
    Dave Peterson

    Acad 2014 - Revit Structure 2013 & 2014 - Win 7 64 - i7-4770 4.5GHz 32GB Ram - Nvidia Geforce GTX 650
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  8. #18
    I could stop if I wanted to 09silverado's Avatar
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    Default Re: Re: Exempt vs Non-Exempt

    seems like with the professional definition it's hard to really see how this would work.
    Thank you kindly
    Lead Landscape Architect & CAD Manager
    R14 - C3D 2014
    http://www.youtube.com/user/butzers03xtreme I drive a Silverado, its loud and I like it

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    Member MLMore_CivilDesigner's Avatar
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    Default Re: Re: Exempt vs Non-Exempt

    Quote Originally Posted by Ed Jobe View Post
    So, I have two college degrees, but I am mostly self-taught or on-the-job trained in Architectural Millwork and the drafting of it, but for now, I'll go with the Professional designation, and see how it goes.
    I know it's been a while since this thread was current, but you should be DANG glad you have a JOB in this economy and not worry about how you're compensated.
    Michael L.
    Sr. Civil Designer

    We live in a society exquisitely dependent on science and technology, in which hardly anyone knows anything about science and technology.
    - Carl Sagan

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