Two jobs / Same company / Different exempt status

wabbitears

A Question coming from the State of Florida about an employee who is currently employed under an exempt status.

Seasonally, we have extra work available to those who want to make overtime, working evenings and early mornings in a department who hires non-exempt personnel.

This employee (exempt) wants to work the extra hours as a non-exempt employee using her current rate of pay broken down to an hourly increment.

While there is no objection from management to let her work simultaneous "exempt and non exempt" positions, we wonder if there might be a legal ramification for the company if it does do this?

Also, going to the same basic question, can there be two different rates of pay: for instance, if the company has $10.00 an hour jobs to offer to current employees who want to work extra hours but the employee who applies for the $10.00 job is already making a greater than $10.00 per hour, is the company forced to pay the employee the higher rate on the second job? (the one that is posted at $10.00 an hour.)

Can anyone give me chapter and verse on this situation as it applies to the law in Florida or in the US as a whole?

I would greatly appreciate your input on this situation.

Petard

Welcome to the Forum, Wabbitears.

Check out Leslie's posting on 10/06/03 concerning a similar situation. (Do a search on "bartend" and then click on Leslie's item.)

This is an issue where Hatchetman and a few others can cite that chapter and verse you're seeking. Generally speaking, though, as long as the employee earns his or her full salary for the regular job, it is permissible to receive additional pay--in the form of bonus or otherwise--for overtime, extra assignments, or whatever. I would think that the employer could pay whatever amount or rate that it wants for the additional compensation and is not required by statute to maintain the employee's regular pay.

This isn't an absolute slam dunk, however. In some parts of the country, the courts focus on protecting the regular salary and then don't concern themselves much with extra pay. Other courts might not like an exempt employee's having to record hours of nonexempt (extra) work. I don't know how Florida's courts might look at this situation.

In addition, you'd probably want to make sure that (1) the employee doesn't rack up a lot of overtime hours and (2) this is a short-term situation. You don't want it to appear that you're trying to declare someone to be exempt when they're nonexempt.

Crout

As a practice we never mix exempts with non-exempts. I'm not saying it's impossible, but I would not recommend it. It's confusing to our already far too confused fiscal office, and we certainly don't need any possible DOL problems. In regard to the $10 scenerio, you do not have to pay a higher rate for any individual, but you must keep in mind that if the extra hours go over 40 you must pay overtime based on the blending of all the different rates for the week. Again, that can be confusing and time-consuming for your payroll people.

Hatchetman

FLSA permits a salaried, exempt employee to perform up to 20% of his or her total duties in non-exempt work without jeopardizing the exempt status if the exemption is based upon the "long test." If the exemption is based on the "short test", then the primary duties (meaning 51%) must still be in exempt work if there are non-exempt duties without jeopardizing the exempt status.

I agree with Petard. DOL's Opinion Letters do provide for a salaried exempt to receive overtime without loss the exempt status, even on an hourly basis. Even the FLSA regulations, 29CFR541.118(b), provides for additonal pay to the salaried exempt, for extra work. DOL interprets that provision to allow for bonuses, including hourly pay, or just about any other pay method for the extra work. There are some caveats attached to that, however. DOL's concern is that the overtime pay not be a ruse to get around the prohibitions in docking pay that are established in 541.118(a)

Regarding the issue of a non-exempt working two jobs with different pay rates, Crout is correct. There are FLSA porovisions that address the issue. It does provide for a combined average weight in calculating the total rate of pay and the rate on which overtime is to be based.

Remember, overtime will be based upon total hours worked in both jobs combined. So, if more than 40 hours is worked combined on both jobs, then time-and-a-half kicks in on either job at that point.

But the FLSA regs do provide that the employee may agree voluntarily in writing to have the overtime paid based upon the rate of pay of the job that is then being worked.

For the weighted average approach, take a look at 29CFR778.115; for the employee's agreement to work at the particular rate of the job see 778.415 and .419.

[url]http://www.access.gpo.gov/nara/cfr/waisidx_03/29cfr778_03.html[/url]