Human Resource Blog

Exempt Overtime

Can an exempt employee work in an non exempt status for an employer and be compensated overtime. Example, exempt police officers working a special assignment for the federal gov. enforcing seat belt or DWI tickets under federal and state grant. Note they are not supervising or performing administation duties. They are working on their days off or vacation.

This is a deceptively complex question, so we will look at the issues one at a time.

Can an exempt employee work in a non-exempt position on his or her days off? Yes. However, if the work is for the same employer, there is no requirement for the employer to pay the exempt employee any additional wages for that time. Example: Ted is a restaurant manager. He works 5 days per week as a manager. On Saturday, the restaurant is short one cook and Ted fills in on the line. Even though Ted was working in an hourly position on his day off, there is no requirement that the employer pay him any additional wages. Teds salary as an exempt employee covers all the hours that he works in any capacity.  In fact, if the employer pays Ted overtime, he is endangering Teds exempt status, and the exempt status of managers at other locations.

However, different rules apply if Ted is working for a separate employer on Saturday. Suppose Ted normally works as manager at Bobs Barbeque Restaurant. On his day off, Ted works as line cook at Frannies House of Sausage, a restaurant that is in no way affiliated with Bobs BR. Ted works 8 hours per week for Frannies and is not entitled to any overtime.

Some employers have rules that prohibit an employee from *moonlighting* for a competitor. In that case, Bobs BR may decide to fire Ted for violating company policy.

(However, if both restaurants were owned by the same company, then we are back to Ted not being entitled to any additional payment or overtime, as an exempt employee.)

The situation becomes even more complex when the employee in question is a law enforcement officer. Generally, federal laws (including overtime) do not apply to state employees — and state laws often do not apply to federal employees. So it is impossible fot use to give a definitive answer without knowing much more about the situatuion.

But the same general principle applies — if the exempt employee is working for  the same employer, by all means, yes, he or she can volunteer for additional duty. But they need not be paid anything over and above the employees usual salary, for the extra work. So the exempt employee is not entitled to straight time, much less overtime, for the additional hours.

Many police departments also have strict policies that require any moonlighting to be approved in advance.