I am considering taking a temp-to-hire position as a Field Service Engineer. The employment agency says that the position pays hourly for hours worked and straight time for hours over forty in a work week. I would like to know if this is allowed under FLSA and if so what chapter and paragraph are they using?

Posted  12-06-2013

Ann Kiernan replies:

From your description, this does not sound right. If you are a professional engineer, you could be exempt from overtime, but you would have to be paid on a salary basis, not hourly. See: DOL Fact Sheet 17D

On the other hand, if you are a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field, and your primary duties are:

  • 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

then you are exempt from overtime if you are paid on a salary basis OR are paid at least $27.63 an hour. See: DOL Fact Sheet 17E

Since state laws may have different requirements, you may want to consult a local employment attorney. Good luck.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.