EMPLOYEE RELATIONS BULLETIN

Employee Relations Services – Human Resources Division

 Date:  November 2000                                                        No. 1

FAIR 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 time-and-a-half?”

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 participating employee.  

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 employment.  

Employee Relations Bulletins are intended to provide an overview of subjects of interest.  For more detailed information contact Employee Relations.