Relations Services – Human Resources Division
LABOR STANDARDS ACT (FLSA) INTERPRETATION
“Can an employee from one
County department work as a temporary employee for another department outside of
her/his regular working hours? If
so, at what rate would the employee have to be paid – straight time or
This question was recently
raised and, to our knowledge, has received considerable attention over the years
- especially during election time.
In a recent investigation
conducted by Employee Relations, the practice of allowing a road
maintenance worker from the Public Works Department to work as a temporary
polltaker for the Elections Department was undertaken. It
was found that this practice neither violated established County policy or legal
mandate and, therefore, the practice has been determined permissible.
This determination is based on
the type of work involved which was found to be “occasional and sporadic” by
the Department of Labor (DOL) under the Fair Labor Standards Act (FLSA).
Furthermore, the DOL makes exceptions for state and local government
employees in such cases where the nature of the temporary worked involved is
found to be “dissimilar” from the regular duties performed by the
To paraphrase, the DOL defines “occasional and sporadic” as work that is so infrequent that by its very nature would not be considered a regular duty. In the case of the road maintenance worker working as a temporary election polltaker, it was found that this definition was perfectly applicable since presidential elections occur only once every four years. Likewise, the work involve was considered “dissimilar” for obvious reasons.
Now that we’ve cleared
that up, how should an employee be paid in this situation?
The DOL has determined that
public agency employees working for the same agency in the “occasional and
sporadic” capacity are not entitled to time-and-a-half (overtime) pay, since
the employment in question is in a different capacity from their regular
Employee Relations Bulletins are intended to provide an
overview of subjects of interest. For more detailed information contact