Contractor/Employee/Extra Duty

Can an hourly employee also be a contract employee for extra duty? We have a list of on call contract personnel that come in and draw blood for DUI arrests. They are not our employees, sign a contract and are paid a flat rate per call. Our nursing staff (regular hourly employees) would like to be put onto the list and have the opportunity to be paid the flat rate. I think FLSA probably prohibits that and we would need to pay the nurses their overtime hourly rate (which in some cases is more than the flat rate). The blood draws are related to their normal duties but are not exactly the same if that makes any difference.


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  • I don't know if this is exactly the same thing but. .
    Our police officers (regular hourly employees) can work "off duty" They are paid a flat hourly rate by the event or customer. It is my understanding they get a 1099. . it basically has nothing to do with our payroll. .
  • If your hourly employees are doing the same work as the contract employee, and the work is similar to their regular work, you cannot treat them as contract employees. In your case drawing blood is very similar to regular nursing work. I am willing to bet the DOL will not see it as separate and will expect you to pay overtime.

    If you pay a third party to draw blood for certain circumstances, and the third party hires your nurses and pays them, it may then be a separate thing. I would still not do it though, as your risk is high that the DOL will decide you are directing the work and hold you liable for overtime.

    Good luck!

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