“Have you tried turning it off and back on?”

--Anonymous 

A government contract client asked for my guidance with respect to an IT Support Center Operator performing services in a Help Desk Tier 1 job position. They wish to know whether the position is exempt or nonexempt under the Fair Labor Standards Act (“FLSA”) and the Service Contract Act (“SCA”).  

The job description provides for duties ranging from the diagnosis, logging, and resolution of IT support tickets to system-wide patching and upgrade installations. It includes monitoring services, assisting users with basic IT issues and triage, log, and system maintenance, patching, disaster recovery, and security remediations. It is thus a first-line technical support position which assists users, and logs, tracks, and manages incidents and service requests. However, more complicated issues  are supposed to be escalated to another team at the next level of support.

The threshold issue is whether these first-tier IT support  services are FLSA nonexempt such that they would be covered by the Service Contract Act (“SCA”). Without belaboring it, I think it clear that the U.S. Department of Labor (“DOL”) takes the position that Help Desk Tier 1 job positions are nonexempt under the FLSA and thus covered by the SCA, provided the services are performed on federal government prime or subcontracts primarily for IT services. It has been DOL’s long-standing position that help desk services, particularly tier 1 and probably tier 2, are deemed to be nonexempt. See DOL Opinion Letter dated Oct. 26, 2006. See also Field Operations Handbook (“FOH”) section 22i19.  According to DOL, help desk technical services are neither administrative nor computer employee exempt work as defined in their Part 542 regulations, and are thus covered by the FLSA.

The same DOL conclusion regarding the possible application of FLSA administrative exemption is set forth in both the DOL opinion letter and the FOH:

Therefore, based on our review of the information you provided, it is our opinion that the IT Support Specialist position does not qualify for the administrative exemption under section 13(a)(1) of the FLSA. See Martin v. Ind. Mich. Power Co., 381 F.3d 574, 581-84 (6th Cir. 2004) (IT Support Specialist responsible for installing and upgrading hardware and software, configuring desktop computers, and testing and troubleshooting equipment is not exempt as administrative employee under pre-2004 regulations because such work is not directly related to management policies or general business operations and is not of substantial importance to management or operation of the business); Turner v. Human Genome Scis., Inc., 292 F. Supp. 2d 738, 745, 747 (D. Md. 2003) (although employees responsible for troubleshooting and correcting hardware and software problems and network connectivity issues utilized “knowledge and skill to solve computer problems, their primary duties did not involve discretion or independent judgment as required” under pre-2004 administrative exemption); Burke v. County of Monroe, 225 F. Supp. 2d 306, 320 (W.D.N.Y. 2002) (employees whose work included installing and operating computer networks, analyzing hardware and software problems, testing, and problem solving did “highly-skilled work,” but these were “routine duties without the requirement of discretion and independent judgment” under pre-2004 administrative exemption).

And DOL reached a similar conclusion about application of the computer employee exemption stating:

Because the primary duty of the IT Support Specialist you described does not consist of duties similar to those discussed in 29 C.F.R. § 541.400(b)(1)-(4), it is our opinion that the IT Support Specialist position does not qualify for the computer professional employee exemption under FLSA sections 13(a)(1) and 13(a)(17). See Wage and Hour Opinion Letter August 19, 1999. Therefore, the IT Support Specialist position is covered by the minimum wage and overtime provisions of the FLSA.

Id.

Accordingly, this kind of help desk tier 1 job position is generally considered to be FLSA nonexempt. Since the SCA incorporates by reference the same Part 542 white-collar exemptions set forth in the FLSA, the same result is had under the SCA. Nonexempt service workers performing direct services on US Government prime or subcontracts are ordinarily covered by the SCA.  To the extent that:

·        these services will be performed directly on an SCA covered contract; or

·        the employees will be furnishing the technical support services directly to US Government personnel; and

·        the prime contract contains SCA clauses and wage determinations;

then those SCA contract clauses and wage determinations are determinative. Any first-tier help desk IT services which falls within the scope of work identified in that prime US Government contract would be subject to the SCA prevailing wage and fringe benefit requirements.

On the other hand, if contractor/employer  was not performing these services for directly to US Government customers pursuant to explicit prime contract requirements, and the services were only indirectly related to the support of the US Government contract, then the SCA might not apply; or even if it did apply, the only application would be to require employer to pay not less than the FLSA minimum wage (currently only $7.25 an hour). The SCA prevailing wages and fringe benefits do not apply to indirect employees who are not directly engaged to perform the work required by a US Government contract. And thus, there ordinary is no application of the SCA wage determination to those indirect employees. The line between indirect and direct employees can be ambiguous. We wrote two blogs on the subject of indirect employees which you can review. See https://www.awrcounsel.com/blog/2019/8/20/now-you-see-it-now-you-dont-service-contract-act-coverage-of-indirect-employees?rq=indirect and https://www.awrcounsel.com/blog/2024/8/26/sporadically-engaged-and-indirect-service-employees-is-there-some-kind-of-de-minimis-rule-when-it-comes-to-sca-coverage?rq=indirect. See also 29 CFR 4.153 and FOH 14b05(c).

But the point remains that first-tier help desk workers  who duties are only indirectly related to the government contract performance may not be covered by the SCA. Thus, such employees, while nonexempt, may not be entitled to prevailing wages, and may only be entitled to receive the FLSA minimum wage as well as time and one-half overtime premium pay for hours worked in excess of 40 hours a week.