Employee working in a Non-Exempt and Exempt capacity
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I work for a public university and am trying to determine whether or not an employee in a exempt and non exempt position would receive overtime. Here are the specifics: Employee A currently works as a full time non-exempt employee in Dept B. Dept C would like to hire the employee in a part time exempt position. Dept B is willing to reduce the current position to part time. Employee would be working 20 hours in each position. If the employee works additional hours in the non-exempt position, how would you pay this time? Would you add both positions together to determine overtime or only use the first position as it is non-exempt?
Any assistance you can provide is greatly appreciated.
Comments
This is what I have found querying the BLR website. I hope it is helpful.
If an employee is working two separate jobs at different rates for the same employer, overtime is owed if the employee works a combined total of more than 40 hours in a workweek. The overtime should be calculated based on a regular rate of pay that is the weighted average of the rates for each job. For example, if an employee works 30 hours at $10 per hour and 20 hours at $8.00 per hour, the weighted average is $9.20 (30 hours x $10 per hours + 20 hours x $8 per hour ÷ 50 hours). The overtime pay is $46 (1/2 of $9.20 per hour x 10 hours). Alternatively, the employer and employee may agree in advance that overtime will be paid based on the rate for the type of work that was performed during the overtime hours.
Warning: Exempt salaried employees often want to work additional hours for their employer doing nonexempt work (such as data entry) to augment their salary. If this work is paid on an hourly basis, the employee may no longer be exempt and overtime will be owed including overtime for hours over 40 per week that the employee works in his or her formerly exempt job. This problem can be avoided by paying the employee a fixed salary for the second job that does not vary from week to week based on the number of hours worked. In addition, the hours worked in the second job must not be so large that the employee's "primary duty" is no longer work that qualified for the professional, administrative, or executive exemptions.
[quote user="cappy"] Warning: Exempt salaried employees often want to work additional hours for their employer doing nonexempt work (such as data entry) to augment their salary. If this work is paid on an hourly basis, the employee may no longer be exempt and overtime will be owed including overtime for hours over 40 per week that the employee works in his or her formerly exempt job. This problem can be avoided by paying the employee a fixed salary for the second job that does not vary from week to week based on the number of hours worked. In addition, the hours worked in the second job must not be so large that the employee's "primary duty" is no longer work that qualified for the professional, administrative, or executive exemptions. [emphasis added][/quote]
I think the devil's in the details on this one. You can't pay someone on a salary basis for non-exempt work in a different job with the same employer and simply escape owing overtime. There's some system of pay approved in the last FLSA updates and I don't remember what it's called but it's a strange way of sort of reducing overall OT payments by paying a fixed amount weekly for all straight time. Someone have the details handy on this?
HI TX. This is not my best subject in employment law so I did not take a chance in giving my thought. I figured there was a lot more to the subject. But I did find what should be up to date information and posted it above. The complete analysis can be found at the posted link but it is a members paid site. I'm sure that it includes all FSLA requirements its just that it is too long to post.
I believe that the warning is the latest FLSA condition.
Anyway I look forward to learning more about this subject.
http://hr.blr.com/analysis.aspx?topic=2145500&juris=1800
As the paragraph above alludes to, if the employee is splitting the time equally among the exempt and nonexempt positions the primary duty test (usually more than 50 percent of time) probably won't be satisfied, so OT would be owed for any hours above 40 since time is an important factor.
TX, I believe the formula you are referring to is the Fluctuating Workweek. This allows you to pay a employee with a "fluctuating workweek" a regular salary (“for the hours worked each workweek, whatever their number.”), and pay .5 x the regular rate of pay (for hours over 40). A fixed workweek employee would have to be paid at 1.5 times the regular rate of pay for any hours above 40. keep in mind the fluctuating workweek method doesn't allow the same absence-related deductions that a typical exempt employee would be subject to (e.g. if a fluctuating workweek employee has no sick time in the employer's sick leave bank and takes a full sick day, the employer cannot deduct from the employee's salary for that absence).
[quote user="SFbay"]TX, I believe the formula you are referring to is the Fluctuating Workweek. This allows you to pay a employee with a "fluctuating workweek" a regular salary (“for the hours worked each workweek, whatever their number.”), and pay .5 x the regular rate of pay (for hours over 40). A fixed workweek employee would have to be paid at 1.5 times the regular rate of pay for any hours above 40. keep in mind the fluctuating workweek method doesn't allow the same absence-related deductions that a typical exempt employee would be subject to (e.g. if a fluctuating workweek employee has no sick time in the employer's sick leave bank and takes a full sick day, the employer cannot deduct from the employee's salary for that absence).
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Bingo. It has several special requirements. Particlarly, that the workweek actually "fluctuates" and the pay level must never drop below minimum wage, meaning the base pay has to equate to 1.5x the minimum overtime or the number of hours worked must never exceed what the person would have made at the minimum wage for the combined straight and OT hours worked. There has to be an agreement between employer and employee that they will be paid on the fluctuating workweek plan, etc. etc.