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March 17, 2005
Dear Name*,
This is in response to your request for an opinion
concerning the application of the Fair Labor Standards Act (FLSA) to a
nonexempt office assistant who chooses to also work in another capacity as an exempt
coordinator for the same public employer.
You state that the currently unfilled exempt coordinator
position has the authority, among other duties, to suspend and fire others.
The office assistant wants to perform the coordinator’s duties in the evenings,
during her off-duty hours. The two positions are separate and distinct. The
work performed as the coordinator will be more than occasional or sporadic.
You ask two questions below:
- If an employee wishes to work two separate and distinct positions for a public employer, one exempt and the other nonexempt, can the employer treat the positions separately and therefore pay the employee for each position separately?
- If not, and an employee is hired for two separate and distinct positions, to which position is overtime pay suppose to be
computed? In your situation, one position is nonexempt and the other is exempt. The exempt position is the higher paying position.
Please note that the Department of Labor issued revisions to 29 CFR Part 541, the regulations implementing the Section 13(a)(1) exemption
for bona fide executive, administrative, and professional employees, effective August 23, 2004. See 69 Fed. Reg. 22122 (April 23, 2004). The revised Part 541
regulations apply prospectively, beginning on August 23, 2004. Our response is applicable under the updated regulations that clarify the primary duty test
requirements for the executive, administrative, and professional exemptions.
This response assumes that the coordinator position, which you describe as
exempt, meets all the applicable duty, salary level, and salary basis
requirements for an exempt position under 29 CFR Part 541.
As explained in section 541.700 of the revised regulations,
an employee’s “primary duty” must be the performance of exempt work in order
for the minimum wage and overtime exemption of Section 13(a)(1) to apply. The
term “primary duty” means the “principal, main, major or most important duty
that the employee performs. Determination of an employee’s primary duty must
be based on all the facts in a particular case, with the major emphasis on the
character of the employee’s job as a whole. Factors to consider when
determining the primary duty of an employee include, but are not limited to,
the relative importance of the exempt duties as compared with other types of
duties; the amount of time spent performing exempt work; the employee’s
relative freedom from direct supervision; and the relationship between the
employee’s salary and the wages paid to other employees for the kind of
nonexempt work performed by the employee.” 29 CFR 541.700(a).
The regulations further state that the “amount of time spent
performing exempt work can be a useful guide in determining whether exempt work
is the primary duty of an employee. Thus, employees who spend more than 50
percent of their time performing exempt work will generally satisfy the primary
duty requirement. Time alone, however, is not the sole test, and nothing in
this section requires that exempt employees spend more than 50 percent of their
time performing exempt work. Employees who do not spend more than 50 percent
of their time performing exempt duties may nonetheless meet the primary duty
requirement if the other factors support such a conclusion.” 29 CFR
541.700(b).
Based on the discussion and guidance above, if the primary
duty of this employee is the performance of work as the exempt coordinator, it
is our opinion that the exemption(s) under Part 541 would apply. In that case,
no additional compensation beyond the guaranteed salary required for exemption
would be mandatory; of course an employer may choose to provide additional
compensation to exempt employees who perform extra work. See 541.604(a).
However, if the primary duty is comprised of duties performed as a non-exempt
office assistant, then the exemptions under Part 541 would not apply. See
opinion letters dated December 11, 1988, and April 20, 1999. In the latter case, overtime is computed based on the combined total hours for both
positions.
As you correctly indicated, Section 7(p)(2) does not apply
to this situation. Section 7(p)(2) of the FLSA provides that where State or
local government employees, solely at their option, work occasionally or
sporadically on a part-time basis for the same public agency in a different
capacity from their regular employment, the hours worked in the different jobs
must not be combined for the purpose of determining FLSA overtime liability.
The term “occasional or sporadic” means infrequent, irregular or occurring in
scattered instances (see 29 CFR 553.30). Since, as you state above, the amount
of time figured to be spent by the office assistant working as the coordinator
would be more than occasional or sporadic, Section 7(p)(2) cannot apply. In
this situation, the public employer may not calculate overtime for each
position separately, but must aggregate the total hours spent on both jobs in a
workweek to determine the number of overtime hours worked.
Once the combined total number of hours is determined, the
rate of overtime pay due may be computed using either of two methods. 29 CFR
Section 778.115 states that where an employee in a single workweek works at two
or more different types of work for which different straight-time rates of pay
(not less than the minimum wage) have been established, the regular rate for
that week is the weighted average of such rates. That is, the earnings for all
such rates are added together and this total is then divided by the total
number of hours worked at all jobs. Pursuant to Section 7(g)(2) of the FLSA,
an employer alternatively may pay an employee overtime at one-and-one-half
times the bona fide rate applicable to the type of work being performed during
the overtime hours. See 29 CFR 778.415 - .421.
This opinion is based exclusively on the facts and
circumstances described in your request and is given on the basis of your
representation, explicit or implied, that you have provided a full and fair
description of all the facts and circumstances which would be pertinent to our consideration
of the question presented. Existence of any other factual or historical
background not contained in your request might require a different conclusion
than the one expressed herein. You have represented that this opinion is not
sought by a party to pending private litigation concerning the issue addressed
herein. You have also represented that this opinion is not sought in
connection with an investigation or litigation between a client or firm and the
Wage and Hour Division or the Department of Labor.
We trust that the above is responsive to your inquiry.
Sincerely,
Alfred B. Robinson, Jr.
Deputy Administrator
Note: * The actual name(s) was removed to preserve privacy.
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