Overtime Clarification

Crout · March 2005

I suspect I know the answer, but I wanted to get some opinions. Here's the situation: I have a FT non-exempt EE who is transferring to a FT exempt position. His old supervisor would like to retain him as On-Call worker to pick up some hours here and there as needed at his old job. The question is: if he goes over 40 by working 10 hours (for example) at the old, non-exempt job would he get overtime, even though the first 40 hours in that week were worked in a position that is exempt? As usual, thank you kindly.

Don D · March 2005

To be safe, yes. Otherwise, it will look to the untrained eye of a DOL investigator like you tried to make him exempt to avoid overtime. Step away from it and you will see it that way. But, practically speaking, if you intend only to do this for a very, very short while, I would simply pay him extra money for the extra hours worked and remind him that he is now exempt.

We tend to always think the constabulary is watching from above and is about to descend.

Shadowfax · March 2005

Don is undoubtedly right about being safe - but why not factor in the 'duties' that the ee might be called upon relating to his old position against his duties in the new position, and if he still meets the standard for exempt, then seems to me you are safe. Check out section the 541.707 exemptions relating to the factors to consider when exempt is doing non-exempt work, you might be surprised at the outcome. This is an area that was loosened up a bit in the rewrite.

pork1 · March 2005

SHADOWFAX: Yes, but would the words "task not available for nonexempt employees" not apply in this situation. I believe I would do as Don suggested but make sure this is only for a short period of time required to get some other Non-exempt ee/person trained to do these task. Paying this person a bonus for the personal training of another ee in a difficult procedure would be a real positive for the ee.

I suspect, however, the supervisor is not interested in getting someone else trained to accomplish the non-exempt work accomplished by this specific person! He wants his "HAM" and to also eat it all.

PORK

Crout · March 2005

Thanks very much for the responses. Boy, there's nothing like reading the Federal Register, is there? Kind of like a Tom Clancy novel....keeps you on the edge of your seat. As I understand 541.707, the "occasional tasks" they refer to are in the course of performing the duties of a position that is exempt. My scenario is of a guy currently working in a non-exempt job who applied for a posted, exempt position in a different part of the company, and was accepted. However, his old supervisor would like him to come back and do the old job on an occasional basis. Pork was right on the money when he suggested that the old supervisor would most likely try to make the occasional basis less than occasional. So if I read you all correctly, the vote is for overtime just to be on the safe side, especially since we can assume that he will be used more than occasionally...is that correct? Thanks.

Shadowfax · March 2005

Dammit! I hate it when facts get in the way of a perfectly good solution.

pork1 · March 2005

I concur; watch the reaction of the management team, when they see the O/T cost mounting up in this supervisor's P & L. I am positive the occasional will remain occasional and not long lived!

PORK

hhaynal · March 2005

My understanding of the DOL's position on this type of situation is as follows:

Maintaining Exempt Status -- To maintain the exempt status while performing non-exempt work, an employer must perform an analysis of the exempt position to determine the following: (1) under what classification is the exemption claimed; (2) combine both the exempt and non-exempt work together, then determine the percentage of duties to be exempt and those to be nonexempt in the given work week. For example, exempt employee generally works a 40-hour work week and wants to take on 20 hours in mfg operations (non-exempt). Employee works a total of 60 hours in a given work week. It is determined 25 hours (41 percent) is spent in non-exempt duty with the remaining 35 hours (or 59 percent) in exempt work. According to the DOL, the exempt employee status would "probably be okay." However, were the percentages to be closer together, 50/50, then the employee would be in jeopardy of losing his/her exempt status.

Wage Arrangement for Non-exempt Work -- My understanding is that the company can pay whatever it wants to the employee for performing the mfg ops (non-exempt) work so long as it is agreed to by the parties prior to starting the part-time work. Also, there is no overtime consideration for work performed in excess of 40 hours.

Don D · March 2005

The really idiotic arrangement, and there are places out there that do this, is when you have a non-exempt working a 40 hour week and you bring him back in after his shift as 'casual labor' and pay him straight time, or worse, as an independent contractor. I worked for one of the largest trucking companies in the country which did this with its mechanics and probably still does. It's one of those "We've always done it this way" things that will burn their britches one day (I hope).

Overtime Clarification

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