Second Job for the Same Employer Results in Overtime Liability

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

The State of New Hampshire and several municipal employers have recently been reminded of a basic tenet of the Fair Labor Standards Act (“FLSA”), the federal law which requires payment of overtime to non-exempt employees who work more than 40 hours in a seven day pay week. Since its inception in the 1930s, the FLSA has required that an employer include all hours worked by the employee for the employer in the weekly determination of overtime eligibility. In this regard, the FLSA does not differentiate between hours worked by an employee in his or her primary assignment and hours worked for the same employer in a secondary capacity.

For example, assume a planning department secretary typically works 40 hours per week. If that secretary works extra hours for the planning department or planning board, those hours would need to be added to the total hours for the pay week. Any hours in excess of 40 would have to be paid at “time and one-half” of the employee’s “regular rate.” The same is true if the planning department secretary also worked for the same employer as a special police officer or provided weekend coverage at the transfer station. Those additional hours would need to be added to the 40 hours worked in her primary assignment, with overtime paid for hours in excess of 40. In each of the examples above, the key element is that the employee is rendering services to the same employer. Regardless of the dissimilarity of the work performed, or the fact that the employee may keep more than one timecard, all work for that same employer must be considered in determining overtime eligibility.

In calculating the overtime rate for an employee working two or more different jobs for the same employer, the FLSA requires the use of a weighted average. Assume the planning secretary generally earns $15 per hour and receives $25 hour while working as a special police officer. If the employee worked 40 hours in planning ($15 x 40= $600) and 12 hours as a special police officer ($25 x 12 = $300), the employee’s total straight time earnings for the week is $900. The weighted average hourly rate is determined by dividing the total earnings by the total hours ($900/52 = $17.31), resulting in a time and one half rate of $25.96.

And, like every other FLSA doctrine, there are exceptions. For example, additional services provided by a public employee to his or her employer on a volunteer basis are not counted as work hours. However, it is important to remember that employees cannot volunteer to perform services in their regular job capacities. The planning secretary cannot volunteer to do administrative work for the planning board, but could serve as a volunteer firefighter or recreation worker. There is also an exception for secondary employment that occurs only occasionally or sporadically. If the planning secretary occasionally received pay for chaperoning a recreation department activity or providing security and clean up services at Old Home Day, those hours need not be added to the employee’s regular hours and need not be considered in determining the overtime rate. Those occasional and sporadic hours could be paid at any straight time rates. This is true even though the same employee might provide the same services at the same events, year after year.

Finally, for purposes of FLSA compliance, it is important that public employers understand whether their fire department personnel are volunteers or employees. Remember, labels do not matter: some personnel of “volunteer fire departments” meet the definition of “employees,” in that they expect to be paid for their services and the established rate of pay is not nominal. If the planning secretary is a paid employee of the her employer’s fire department, even if only working on an on call basis, hours worked as a firefighter would have to be added to hours in the primary job for overtime purposes.

Mark Broth is a member of the DrummondWoodsum’s Labor and Employment Group and his practice focuses on the representation of private and public employers in all aspects of the employer-employee relationship. This is not a legal document nor is it intended to serve as legal advice or a legal opinion.  DrummondWoodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such. “Copyright 2015 DrummondWoodsum. These materials may not be reproduced without prior written permission.”