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Jan28

Can an exempt employee work a second job?

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Can an exempt employee working for a hospital work a second part time job (non-exempt) for the same association?

Yes, but we would not advise it for legal reasons. The real answer to this question is *Yes, the exempt employee can work two jobs for the same employer — as long as they are paid only their exempt salary, and do not receive any additional pay for the additional hours worked.* When the situation is handled this way, the exempt employees duties are simply being expanded.

The problem lies in payment for the part-time position. Because the employee is already working 40 hours per week, he or she would be entitled to overtime when doing more work for the employer — even though the  two jobs were formerly held by different people. However, paying the employee overtime automatically changes his or her status from exempt to non-exempt, under federal regulations. This change is permanent.

It would be legal for an hourly employee to work two different jobs for the same association, as long as the employee was paid overtime based on the total hours from both jobs. But the only way for an employee to work two jobs and remain exempt, is for the employee to not be paid an additional amount for the second position.

 

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This entry was posted on Thursday, January 28th, 2010 at 8:41 am and is filed under
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12 Responses to “Can an exempt employee work a second job?”

  1. Divorce Procedure | Getting a Divorce Says:
    January 28th, 2010 at 9:53 am

    […] » Can an exempt employee work a second job? Human Resource Blog […]

  2. Kara Says:
    January 28th, 2010 at 10:28 am

    How does Section 39CFR541.604 - Minimum guarantee plus extras fit into this situation?

    This Section states that an employer may provide an exempt employee with additional compensation without losing the exemption or violating the salary basis requirement, if the employment arrangement also includes a guarantee of at least the minimum weekly-required amount paid on a salary basis. It further states that such additional compensation may be paid on any basis (e.g., flat sum, bonus payment, straight-time hourly amount, time and one-half or any other basis.)

    Thank you

  3. Caitlin Says:
    January 28th, 2010 at 12:13 pm

    Hi Kara! That regulation would work if the employer wants to occasionally reward an exempt employee with a bonus. However, in a number of cases where the employer tried to use that regulation, the courts have ruled that since earnings vary with the number of hours worked, the employee was always non-exempt. The employers were forced to pay back wages, penalties and fines. This is one of those cases where “winning” the lawsuit could cost the employer $200,000 in legal fees. HTH, and thanks for reading the blogs!~ Caitlin

  4. » Can an exempt employee work a second job? Human Resource Blog | Drakz Free Online Service Says:
    January 30th, 2010 at 1:17 am

    […] original post here: » Can an exempt employee work a second job? Human Resource Blog Share and […]

  5. carol Says:
    February 14th, 2010 at 3:08 pm

    for an example for me. i received a salary and then had the option too see extra clients each for an extra amount, does this mean i should have been paid overtime for the extra .

  6. Caitlin Says:
    February 14th, 2010 at 3:22 pm

    Hi carol! Not necessarily. This could be viewed as paying you a bonus for bringing in additional revenue. If you believe you are due overtime in Tennessee, contact http://www.dol.gov. HTH, and thanks for reading the blogs!~ Caitlin

  7. carol Says:
    February 14th, 2010 at 3:50 pm

    even if these would be my clients on a monthly basis, and actually was responsible for continuation of their paperwork to meet particular guidelines

  8. Caitlin Says:
    February 14th, 2010 at 9:33 pm

    Hi carol! None of those responsibilities would have an impact on an employees exempt or non-exempt status. ~ Caitlin

  9. Tami Says:
    April 16th, 2010 at 11:56 am

    What if the exempt job was .5 FTE and the non-exempt job was .5 FTE? Could we hire one person to do both jobs, PT exempt & PT non-exempt?

  10. Caitlin Says:
    April 16th, 2010 at 1:15 pm

    Hi Tami! No, this runs into the same problem. Under the FLSA, an EMPLOYEE is exempt or non-exempt, not the job. So if the employee is entitled to overtime sometimes, he or she always is entitled to overtime. You would have to pay the employee an hourly rate to do both jobs. HTH, and thanks for reading the blogs!~ Amelia

  11. tommy Says:
    May 5th, 2010 at 2:22 pm

    Just wanted to say I really liked the post. You have really put a lot of time into your content and it is just wonderfull!

  12. Caitlin Says:
    May 5th, 2010 at 7:55 pm

    Check back often, tommy! We post 5 days per week!~ Caitlin

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