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Second Job, hourly

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I’m looking to work a second job in my company. I am currently a salary employee, but want to work a second part time night position as an hourly employee. Two seperate work descriptions. Is there any Federal or New Hampshire State law prohibiting this?
Thanks

This is a tough question and you’ll need to check with both the U.S. Department of Labor and the New Hampshire Department of Labor for a ruling on this specific situation.

Most employers have company policies prohibiting this type of “double-dipping” precisely because it raises too many thorny legal questions. The issues are identified below.

First of all, it’s possible that the employer would not have to pay the salaried worker for the additional time at all. If the manager is currently legitimately on salaried-exempt status, and the additional hours are only a small portion of the employee’s total time at work, they might not change that salaried-exempt status. That means that while the manager might choose to work the additional hours, the employer might be under no obligation to pay him for them.

Suppose a restaurant manager fills in for a bartender occasionally, when the bartender is sick. The restaurant manager is not entitled to hourly pay or overtime, because his primary duties are still administrative, managerial or executive in nature. This would be true even if the manager tended bar 4 nights a week to save payroll, or because he couldn’t find anyone else. The extra hours are simply part of the manager’s “usual” duties.

Second, the tactic of having a salaried-exempt employee hold two different jobs has been used in the past by some unscrupulous employers to avoid paying overtime. So, it is viewed with suspicion by the U.S. Department of Labor.

Third, it is possible that the employee would no longer be considered salaried-exempt due to the part-time job. It’s possible that the U.S. Department of Labor would rule that the manager is entitled to overtime when working over 40 hours, regardless of which job he was doing at the time.

Fourth, an employee who holds two different jobs for the same employer doesn’t automatically “start over” in regards to overtime. Suppose Mary and Ann each have a full-time job at the ABC Company, where they work 45 hours per week. The ABC Company is paying them each 40 hours of regular time and 5 hours of overtime, per week. Now, suppose John decides to work both the jobs formerly held by Mary and Ann. The ABC Company can’t legally pay John  80 hours of regular time and 10 hours of overtime. Instead, the company must pay John 40 hours of regular time and 50 hours of overtime each week.

So, it’s possible that the manager would be entitled to overtime for the entire period that he or she worked the second job. This is not a right that an employee can waive, even if he or she wants to.

If a manager wants a second, part-time job, the safest choice for the employer is for the manager to go to work part-time at a different company.