On October 1, 2013, Montana enacted a new minimum wage and overtime exemption which applies to computer related occupations. As Montana did not recognize the computer exemption until October 1, 2013, this exemption can only be applied for a Montana employee after that date. No exemption of this nature may be applied prior to October 1, 2013.
39-3-406(1)(j) MCA states “…a computer systems analyst, computer programmer, software engineer, network administrator, or other similarly skilled computer employee who earns not less than $27.63 an hour pursuant to 29 CFR 541.400 or 541.402…”
29 CFR Part 541.400 states, in pertinent part:
“…job titles vary widely and change quickly in the computer industry, job titles are not determinative of the applicability of this exemption...
- The application of systems analysis techniques and procedures, including consult
- 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 federal law allows for an exemption when the employee meets either a salary or the hourly criteria. However, when the state and federal law are not the same, the law with the higher standard would apply. Since Montana law specifically refers to the hourly rate or its equivalent, in order to meet the exemption, the employee must be paid $27.63 per hour or a salary which would, if divided by the total number of hours worked in the workweek, equate to $27.63 per hour.
For further reference and guidance, the following are the applicable rules and regulations: