Employees Performing Second Job for the Same Employer

Employees sometimes express interest in working a second job the employer has advertised. (i.e., mowing, landscaping, etc.)  Or, an employer may ask an employee to temporarily fill-in an open position.  This situation raises an important question: What are the requirements of the employer under the Fair Labor Standards Act (FLSA) when an employee performs two jobs for an employer?  The answer depends on whether the employee’s primary duty is classified as non-exempt or exempt.

Non-exempt employees performing two jobs for the same employer must receive overtime for hours worked over 40 in a workweek.  There are two options for calculating overtime.

  1. Overtime may be computed on the weighted average of the two rates; or
  2. If the employer and employee have an agreement prior to the overtime being worked, the overtime may be paid based on the regular rate of the job where there the employee performs overtime.  [See the Wage and Hour Fact Sheet on Overtime for more information on calculations.  http://www.dol.gov/whd/regs/compliance/whdfs23.pdf.]

Employees who meet the tests to be classified as exempt under the Fair Labor Standards Act are exempt from minimum wage and overtime.  Consequently, as long as their primary duty is exempt when taking into consideration additional duties, they maintain the exempt status even if receiving additional pay.

The term “primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole. Factors to consider when determining the primary duty of an employee include, but are not limited to, the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct supervision; and the relationship between the employee’s salary and the wages paid to other employees for the kind of nonexempt work performed by the employee. 

Caution is advised when considering an exempt employee to perform a secondary job that is non-exempt as this would likely be scrutinized by Wage and Hour if brought to their attention.  Call one of our expert Advice and Resolution advisors if you have this situation occurring at your workplace.

Overtime and Joint Employment

Overtime is also due when there is a joint employment relationship and the employee works more than 40 hours per week.  An example you may not have considered is where your employee has a separate, after-hours business such as catering, landscaping, etc.  Even though they may advertise and be considered an independent contractor, they personally should not perform work for your business in that capacity unless you want to consider it as working a second job for you (with potential for overtime). 

Other joint employment relationships may also trigger overtime responsibilities.  [See  http://www.law.cornell.edu/cfr/text/29/825.106 for other examples.]