Q. Our school district has hourly, non-exempt employees who occasionally perform extra work for the district – for example, chaperoning a school dance, or taking tickets at home games. Do we need to track the hours that employees perform on these tasks and pay them overtime if their total work hours go over 40 for a single week?
A. Usually, when an employee works more than one job for an employer, the rule under the FLSA is that the employer must aggregate all of the employee’s work hours for each workweek. If the employee’s total hours go over 40, they’re entitled to overtime pay, even if the extra work was in a separate job and completely voluntary on the part of the employee. (See our earlier post on this subject for a more detailed discussion.)
However, Section 7(p)(2) of the FLSA creates a limited exception to this rule for state and local government employees. Three conditions have to be met in order for this exception to apply:
- The work must be performed solely at the employee’s option.
- The employee must work in a different capacity from their regular employment.
- The work must be performed only “occasionally” or “sporadically.”
If all of these requirements are met, the hours worked in the voluntary extra assignment can be excluded when calculating the hours for which the employee is entitled to overtime compensation, and the compensation paid for that work does not need to be included when calculating the employee’s regular rate of pay.
So what does “occasional or sporadic” actually mean? Unfortunately, the regulations are not particularly helpful on this front. They do clarify that work may still be “occasional or sporadic” even when the need for the work can be anticipated because it occurs seasonally. An activity can still be occasional even if it is recurring. However, if the work is regular – for example, if it occurs every week or every other week – the exception doesn’t apply.
Since this is tough to conceptualize in the abstract, let’s take some examples. Suppose you have a building secretary who takes tickets at a couple of home basketball games each season. Assuming the assignment is completely voluntary, this is probably OK. But, what if the secretary takes tickets at every home game during the season? That might not qualify as “occasional or sporadic,” even though the duties are completely voluntary and separate from the secretary’s regular job.
Or suppose that you have a non-exempt staff person who accompanies students on a three-day class trip to Washington, D.C. During the trip, this individual is responsible for supervising students and leading sub-groups on tours of various points of interest in the city. Let’s assume that going on the trip is completely voluntary. This probably qualifies as “occasional or sporadic,” even if the trip occurs every years. Since the other requirements are met, whether the hours worked during the trip have to be aggregated with the employee’s regular work hours will depend on whether the work during the trip is in a “different capacity” from the employee’s regular work. If the employee regularly works as a teacher’s aid, the duties may not be sufficiently different because they still involve supervising, assisting and instructing students, even though the venue for the work is different. On the other hand, if the employee is a payroll specialist whose work doesn’t typically involve supervising students, the work during the trip would be in a “different capacity” from their regular employment.
Again, the key to applying this exception is to remember that all three of the requirements must be met. Just because an employee is working in a different capacity from their regular job does not mean that hours worked in “extra duty” assignments can be ignored for purposes of calculating overtime.
There are also a couple of other important caveats. First, keep in mind that the exception discussed above exists under the FLSA. Check the law in your state as well as any applicable union contracts, as they may impose additional obligations. Second, even if the exception applies, keep in mind that this is a limited exception from overtime requirements, not minimum wage. Employers must still track employees’ work hours, and must ensure that whatever compensation is paid for any extra duty assignments adds up to the full minimum wage for any additional hours worked.