Key Points

  • The Sixth Circuit affirmed summary judgment for Cincinnati Bell on Loren Bennink's FLSA overtime and Ohio breach-of-contract claims.
  • The court held that the computer employee exemption in 29 U.S.C. § 213(a)(17) contains no degree, education or job-title requirement and turns on the employee's primary duty.
  • Bennink's documentation, design and development of Cincinnati Bell's IVR phone system was his primary duty, making him exempt under § 213(a)(17)(B), even though others did the programming.
  • An offer letter that twice disclaimed being an employment contract, together with Bennink's admission that there was no meeting of the minds, defeated his claim to $75 for every hour worked; his acceptance of $3,000 weekly pay showed agreement to a salary basis.
  • The court did not reach the administrative or highly compensated employee exemptions.

A man who spent years designing the automated phone menu for Cincinnati Bell Telephone Co. was not entitled to overtime pay, a federal appeals court ruled on Oct. 29. The court held that his work on the system made him an exempt computer employee under federal wage law even though he had no formal training in coding.

Circuit Judge Ritz wrote the opinion for a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit that also included Judges Gibbons and Larsen. The panel affirmed summary judgment, a ruling without trial when the material facts are not genuinely disputed, for Cincinnati Bell on both of Loren Bennink's claims: that the company violated the Fair Labor Standards Act by denying him overtime, and that it breached a promise to pay him $75 for every hour he worked.

The panel noted that no other circuit had conducted an in-depth analysis of the current version of the computer employee exemption, which Congress wrote into the FLSA in 1996. It held that the exemption turns on a worker's actual duties rather than on degrees or job titles, and that designing and documenting a system that others program can qualify.

Bennink began developing Cincinnati Bell's interactive voice response system, or IVR, the automated menu that answers calls to a help desk, in 2009 as a contractor for Startek, which ran the company's contact centers. Cincinnati Bell hired him as an employee in May 2016 at $75 an hour and then paid him $3,000 a week. After a Hawaii Telecom integration project left him working up to 18 hours a day, he quit in June 2023.

Bennink sued in the U.S. District Court for the Southern District of Ohio. Cincinnati Bell argued that he was exempt as a computer, administrative or highly compensated employee, and that no contract existed. District Judge Douglas Russell Cole ruled for the company on the computer employee exemption and the contract claim.

The FLSA requires time-and-a-half pay for overtime but exempts many categories of workers. One provision, 29 U.S.C. § 213(a)(17)(B), covers computer workers whose primary duty is the "design, development, documentation, analysis, creation, testing, or modification of computer systems or programs." Hourly workers must earn at least $27.63 an hour to qualify, and both sides agreed Bennink earned far more.

"Notably absent from the statute is any requirement of a particular degree, level of education, or job title," Judge Ritz wrote. Labor Department rules from 1992 had required computer professionals to apply "highly specialized knowledge," the opinion noted, but Congress in 1996 adopted the rules' list of duties and omitted the language about education, independent judgment and specialized skills.

The court adopted the Labor Department's definition of "primary duty" as the worker's most important duty, judged by the job as a whole. Although the Supreme Court's decision in Loper Bright Enterprises v. Raimondo bars deference to agency readings of ambiguous statutes, "we think the Department gets it right," Judge Ritz wrote.

The panel had "little trouble concluding" that an IVR system is a computer system. It pointed to Bennink's own brief, which described "the various computer systems that contributed to IVR's functionality." The opinion reasoned that "a program made up of smaller computer systems is still a computer system."

Bennink had characterized his documentation work as little more than creating "complicated flowcharts." The court disagreed, writing that "his documentation was essential to helping others in the company understand how the current system worked, and therefore how it could be successfully changed in the future." Quoting Bennink's deposition testimony that in an IVR system "the design is the flow," the panel held that "by gathering these inputs and proposing the flow of the IVR, Bennink was designing and developing the system."

The court distinguished its 2004 decision in Martin v. Indiana Michigan Power Co., which held that an IT worker who installed hardware to others' specifications was not exempt. The panel acknowledged that "not all of Bennink's work fell cleanly within the exemption," because others did the actual programming and he often acted as a project manager. But it concluded that his IVR work was central to his hiring and his workload, and was therefore his primary duty.

On Bennink's lack of formal training, the court noted that his own brief conceded such skills can be learned through work experience or self-study. Having found him exempt as a computer employee, the panel did not decide whether the other two exemptions applied.

The contract claim, brought under Ohio law, fared no better. "Two facts are insurmountable," Judge Ritz wrote: the signed offer letter twice stated that it "does not constitute an employment contract," and Bennink testified that he "d[idn't] think there was a meeting of the minds."

The panel also rejected the argument that his at-will employment carried an implied $75 rate for every hour. "The mere mention of a rate of pay similar to his previous rate as a contractor, without any assurances as to whether that rate was to be on an hourly or salaried basis, is insufficient to show that the parties agreed to a $75 hourly rate," the court held. Because Bennink's pay statements showed "$3,000 weekly" and he knew he could not log more than 40 hours, the court concluded that "Bennink agreed to continued employment on a salary basis."

Lawyers for Bennink included Brian J. Butler of The Butler Trial Firm. Cincinnati Bell was represented by Neal Shah of FBT Gibbons LLP.

The affirmance leaves in place the district court's judgment for Cincinnati Bell on both claims. The Sixth Circuit recommended the opinion for publication.