(a) 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 shall not be combined for the purpose of determining
overtime liability under the Act.
(b) Occasional or sporadic. (1) The term occasional or sporadic
means infrequent, irregular, or occurring in scattered instances. There
may be an occasional need for additional resources in the delivery of
certain types of public services which is at times best met by the part-
time employment of an individual who is already a public employee. Where
employees freely and solely at their own option enter into such
activity, the total hours worked will not be combined for purposes of
determining any overtime compensation due on the regular, primary job.
However, in order to prevent overtime abuse, such hours worked are to be
excluded from computing overtime compensation due only where the
occasional or sporadic assignments are not within the same general
occupational
category as the employee's regular work.
(2) In order for an employee's occasional or sporadic work on a
part-time basis to qualify for exemption under section 7(p)(2), the
employee's decision to work in a different capacity must be made freely
and without coercion, implicit or explicit, by the employer. An employer
may suggest that an employee undertake another kind of work for the same
unit of government when the need for assistance arises, but the employee
must be free to refuse to perform such work without sanction and without
being required to explain or justify the decision.
(3) Typically, public recreation and park facilities, and stadiums
or auditoriums utilize employees in occasional or sporadic work. Some of
these employment activities are the taking of tickets, providing
security for special events (e.g., concerts, sports events, and
lectures), officiating at youth or other recreation and sports events,
or engaging in food or beverage sales at special events, such as a
county fair. Employment in such activity may be considered occasional or
sporadic for regular employees of State or local government agencies
even where the need can be anticipated because it recurs seasonally
(e.g., a holiday conert at a city college, a program of scheduled sports
events, or assistance by a city payroll clerk in processing returns at
tax filing time). An activity does not fail to be occasional merely
because it is recurring. In contrast, for example, if a parks department
clerk, in addition to his or her regular job, also regularly works
additional hours on a part-time basis (e.g., every week or every other
week) at a public park food and beverage sales center operated by that
agency, the additional work does not constitute intermittent and
irregular employment and, therefore, the hours worked would be combined
in computing any overtime compensation due.
(c) Different capacity. (1) In order for employment in these
occasional or sporadic activities not to be considered subject to the
overtime requirements of section 7 of the FLSA, the regular government
employment of the individual performing them must also be in a different
capacity, i.e., it must not fall within the same general occupational
category.
(2) In general, the Administrator will consider the duties and other
factors contained in the definitions of the 3-digit categories of
occupations in the Dictionary of Occupational Titles (except in the case
of public safety employees as discussed below in section (3)), as well
as all the facts and circumstances in a particular case, in determining
whether employment in a second capacity is substantially different from
the regular employment.
(3) For example, if a public park employee primarily engaged in
playground maintenance also from time to time cleans an evening
recreation center operated by the same agency, the additional work would
be considered hours worked for the same employer and subject to the
Act's overtime requirements because it is not in a different capacity.
This would be the case even though the work was occasional or sporadic,
and, was not regularly scheduled. Public safety employees taking on any
kind of security or safety function within the same local government are
never considered to be employed in a different capacity.
(4) However, if a bookkeeper for a municipal park agency or a city
mail clerk occasionally referees for an adult evening basketball league
sponsored by the city, the hours worked as a referee would be considered
to be in a different general occupational category than the primary
employment and would not be counted as hours worked for overtime
purposes on the regular job. A person regularly employed as a bus driver
may assist in crowd control, for example, at an event such as a winter
festival, and in doing so, would be deemed to be serving in a different
capacity.
(5) In addition, any activity traditionally associated with teaching
(e.g., coaching, career counseling, etc.) will not be considered as
employment in a different capacity. However, where personnel other than
teachers engage in such teaching-related activities, the work will be
viewed as employment in a different capacity, provided that these
activities are performed on an occasional or sporadic basis and all
other requirements for this provision are
met. For example, a school secretary could substitute as a coach for a
basketball team or a maintenance engineer could provide instruction on
auto repair on an occasional or sporadic basis.
