IT'S TIME TO CLARIFY THE FLSA DEFINITION OF "COMPUTER PROFESSIONAL" NEED FOR CLARIFICATION. As America's technology industry has grown at an extremely fast pace in the last decade, there are literally hundreds of new information technology (IT) professional occupations including a substantial increase in Internet and World Wide Web occupations. As a result, it is important to resolve any doubt about whether these occupations come within the "computer professional" exemption of the Fair Labor Standards Act (FLSA). BACKGROUND. In 1990, with broad bipartisan support, Congress enacted P.L. 101-583, which required the Department of Labor to promulgate regulations that would treat computer programmers, systems analysts, software engineers, and other similarly skilled workers as exempt professionals under the FLSA. Even if such workers were paid by the hour, they would be exempt if their hourly rate of pay was at least 6½ times the federal minimum wage. In response to the law, and based upon public comments received in early 1991, the DOL issued regulations in 1992 that defined who was a "computer professional." In 1996, when the minimum wage was increased, Congress put the DOL definition of "computer professional" into the FLSA. At the same time, Congress also "decoupled" from the minimum wage the minimum rate which must be paid to exempt "computer professionals" compensated on an hourly basis. The rate is now fixed at $27.63 an hour. EXAMPLES OF NEED FOR CLARIFICATION. Clearly since the early 1990s, and even within the past 3 years, the language of the FLSA exemption has become outdated and is causing confusion. Are computer "networks" included within the phrase "computer systems?" Is the "Internet" - which did not even exist in any practical sense in 1990 - a "computer system?" Is high-level work on a computer's "database" or on the "World Wide Web" covered by the reference to programming or analysis? Are workers who "integrate" computer systems or who are involved in "securing" of such systems covered by the exemption? A common sense answer to these and similar questions is that the definition of a "computer professional" must be adaptable so that as technology changes, the exemption's existing reference to "similarly skilled workers" will also change. However, to leave no doubt on this point, the proposed amendment clarifies the application of the "computer professional" exemption by specifically referencing additional duties that are performed by workers who are "similarly skilled" to those currently mentioned in the law. ACTION. While the clarification of the "computer professional" definition was in H.R. 3081, the Small Business Tax Fairness Act of 2000, which passed the U.S. House of Representatives on March 9, 2000, the legislation was not enacted in either the 106th or 107th Congresses. On March 3, 2003, Senator Lindsey Graham introduced S. 495, legislation clarifying the computer professional exemption. We anticipate a companion bill will be introduced in the House of Representatives in the near future. NACCB urges the U.S. Senate and U.S. House of Representatives to pass the clarification of the computer professional exemption as part of stand alone legislation or attached to any appropriate legislative vehicle during the 108th Congress.