2001-02-28 CC Handouts - Laserfiche WebLink

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( ~553.27(c) out at the time of initial separation. Where the final period of employment is less than 3 years, the average rate still must be calculated based on the rate(s) in effect during such period. (d) The term "regular rate" is de- fined in 29 CFR 778.108. As indicated in ~ 778.109, the regular rate is an hourly rate, although the FLSA does not require. employers to compensate employees on an hourly basis. . [52 FR 2032, Jan. 16, 1987; 52 FR 2648, Jan. 23, 1987] ~ 553.28 Other compensatory time. (a) Compensatpry time which- is earned and accrued by an employee for. employment in excess of a nonsta- tutory (that is, non-FLSAl require- ment is considered "other" compensa- tory time. The term "other" compen- satory time off means hours during which an employee is not working and which are n~t counted as hours worked during the period when used. -For example, a ,colle~tive bargaining agreement may provide that compen- satory. time .be granted to employees for hours worked in excess of 8 'in ~ day, or for working on a scheduled day off in a nonovertime workweek. The FLSA does not require compensatory time to be granted in such situations. (b) Compensatory time which is earned and accrued by an employee working hours which are "overtime" hours underState or local law, ordi- nance, or other provisions, but which are not overtime hours under section 1 of the FLSA is also considered "other" compensatory time. Por example, a local law or ordinance may provide that compensatory time be granted to employees for hours worked in excess of 35 in a workweek. Under section 7(a) of the FLSA, only hours worked in excess of 40 in a work.week are over- time hours Which must be compensat- ed at one and one-half times the regu- lar rate of pay. (c) Similarly, compensatory time earned or accrued by an employee for e~ployment in excess of a standard established by the personnel policy or practice of an employer, or by custom, which does not result from the FLSA provision, is another example of "other" compensatory time. (d) The FLSA does not require that the rate at which "other" compensato- ry time is earned has to be at a rate of one and one-half hours for each hour of employment. The rate at which "other" compensatory time is earned may be some lesser or greater multiple of the rate or the straight-time rate itself. (e) The require~ents of section 7(0) of the FLSA, including the limitations on accrued compensatory time, do not apply to "other" compensatory time as described above. OTHER EXEMPTIONS ~ 553.30 Occasional or sporadic employ- ment-section 7(p)(2). (a) Section 7(p)(2) of the FLSA pro- vides that where State or local govern- ment employees, solely at their option, work occasionally or sporadically, on a part-time basis for the same public agency in a different capacity from their regular employment, the hours worked in the different jobs shall not be combined for the purpose of deter- mining overtime liability under the Act. (b) Occasional or sporadic. (1) The ternl occasional or sporadic meanS in- frequent, irregular, or occurring in scattered instances. There may be an occasional need for additional re- sources in the delivery of certain types of public services which is at times best met by the part-time employment of an individual who is already a public employee. Where employees freely and solely at their own option enter into such activity, the total hours worked will not be combined for purposes of determining any overtime compensation due on the regular, pri- mary job. ~owever, in order to prevent overtime abuse, such hours worked are to be excluded from computing over- time compensation due only where the occasional or sporadic aSsignments are not within the same general occupa- tional category as the employee's regu- lar work. (2) In order for an employee's occa- sional or sporadic work on a part-time basis to qualify for exemption under section 7(p)(2), the employee's deci- sion to work in a different capacity must be made freely and without coer- cion, implicit or explicit, by the em- ployer. An employer may suggest that an employee undertake another kind of work for the same unit of govern- ment when the need for assistance arises, but the employee must be free to refuse to perform such work with- out sanction and without being re- quired to explain or justify the deci- sion. (3) Typically, public recreation and . park facilities, and stadiums or audito- riums utilize employees in occasional or sporadic work. Some of these em- ployment activities are the taking of tickets, providing security for speci8J. events (e.g., concerts, sports. events, and lectures), officiating at youth or other recreation and sports events, or engaging in food or beverage sales at special events, such as a county fair. Employment in such activity may be considered occasional or sporadic for regular employees of State or local government agencies ev~n where the need can be anticipated becJl.use it recurs seasonally (e.g., a hOliday conert at a city college. a program of scheduled sports events, or assistance by a city payroll clerk in processing re- turns at tax filing time). An activity does not fail to be. occasional merely because it is recurring.' In contrast, for example, if a parks department clerk, in addition to his or her regular job, also regularly works additional hours on a part-time basis (e.g., every week or every other week) at a public park food and beverage sales center operat- ed by that agency. the additional work does not constitute intermittent and 5 .. irregular employment and, therefore, the hours worked would be combined in computing any overtime compensa- tion due. (c) Different capacity. (1) In order for employment in these occasional or sporadic activities not to be considered subject to the overtime requirements of section 7 of the FLSA, the regular government employment of the indi. vidual performing them must also be in a different capacity, i.e., it must not fall within the same general occupa- tional category. (2) In general, the Administrator will consider the duties and other fac- tors contained in the definitions of the 3-digit categories of occupations in the Dictionary of Occupational Titles (except in the case of pUblic safety employees as discussed below in sec- tion (3)), as well as all the facts and circumstances in a particular case, in determining whether employment in a second capacity is substantially differ- ent from the regular employment. (3) For example. if a public park em- ployee primarily engaged in play- ground maintenance also from time to time cleans an evening recreation center operated by the same agency, the additional work would be consid- ered hours worked for the same em- ployer and subject to the Act's over- time requirements because it is' not in a different capacity. This would be the case even though the work was occa- sional or sporadic, and, was not regu- larly scheduled. Public safety employ- ees taking on any kind of security or safety function within the same local government are never considered to be employed in a different capacity. (4) However, if a bookkeeper for a municipal park agency or a city mail clerk occasionally referees for an adult evening basketball league sponsored by the city, the hours worked as a ref- eree would be considered to be in a dif. ferent general occupational category than the primary employment and would not be counted as hours worked for overtime purposes on the regular job. A person regularly employed as a bus driver may assist in crowd control, for example, at an event such as a winter festival, and in doing so, would be deemed to be serving in a different capacity. (5) In addition, any activity tradi- tionally associated with teaching (e.g., coaching, career counseling, etc.) will not be considered as employment in a different capacity. However, where personnel other than teachers engage in such teaching-related activities, the work will be viewed as employment in a different capacity, provided that these activities are performed on an ocCasional or sporadic basis and all . other 'requirements for this provision are met. For example, a school secre- tary could substitute as a coach for a basketball team or a maintenance en- gineer could provide instruction on .auto repair on an occasional or sporad- ic basis.