Non-Exempt Employee Wants Extra Work

Please forgive me if this question has been previously asked/answered.

I have a non-exempt employee who would like the opportunity to take on a temporary-in-nature special project that would require work outside of her regularly schedule 40-hour workweek. In the past these types of projects have been awarded to exempt employees who were paid in a lump-sum fee arrangement for taking on the short-term special project in addition to their normal work. I vaguely remember (I thought) hearing some lawyer, in some training, and in answer to someone else’s question, state that as long as the duties of the positions are clearly separate and distinct, a single employee could, theoretically, be concurrently both a non-exempt during the day and then take on a clearly exempt position on a limited/temporary basis in the evenings/weekends to pick up additional income without jeopardizing his/her daytime exempt status. My vague recollection is being met with skepticism and some good-natured ridicule here at work. Any chance you could weigh in on the issue.

Comments

  • 4 Comments sorted by Votes Date Added
  • I think there are problems with this. It is my understanding and belief that you cannot avoid paying time and a half to the non-exempt EE with this type of mechanism.


  • There may be "loopholes" where you could legally pay this individual a lump sum or bonus for this project, but I agree with Marc, don't take that chance. If this EE became disgruntled and made that one phone call stating that he had worked
    XX number of hours and was only paid XX dollars and it was not a sufficient amouunt to cover hours over 40 (for each week) then you would be subject to that knock on your door. Hello, I'm from the Dept. of Labor and I'm here to help you!!
  • IF you are a public sector e/er, your situation may qualify under the 'occasional or sporadic' provisions of 29 cfr 553.30(b)(1). But see the distiction at 30(b)(3) that requires even in the public sector if the work does not meet the occasional, sporadic or irregular criteria, the hours have to be added to regular hours for purposes of computing o/t.
  • Don't rely on your elusive memory of what you might have heard might have applied to maybe allowing the employee to earn extra money, separate from his work week wages. It's not acceptable under DOL regs to pay the individual differently. You must simply average the wages and count all the hours in anticipation of overtime.
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