Minnesota Cities Magazine
More from Jul-Aug 2018 issue

Letter of the Law: Compensating Employees Working More Than One Job

By Joyce Hottinger

There are many reasons cities sometimes choose to employ an individual in more than one position, ranging from difficulty in finding enough qualified applicants for seasonal jobs, to the desire to have employees you know you can count on to respond to fire and other emergency calls during weekday hours.

Keep in mind, though, that there may be important overtime calculations and pension issues for the city to consider. Specifically, if an employee works more than 40 hours in one workweek, the city is typically required to pay overtime at one-and-one-half times the regular rate of pay. Thus, generally the city will want to combine hours worked in different positions for the purposes of determining overtime.

‘Volunteer’ firefighters

While many cities do not have paid, full-time firefighters, commonly fire departments designated as “volunteer” are not, strictly speaking, true volunteers and are more aptly referred to as “paid on-call” firefighters. The federal Fair Labor Standards Act (FLSA) allows volunteers who are paid “expenses, reasonable benefits, or a nominal fee” to be exempt from minimum wage laws.

According to the U.S. Department of Labor, fees and stipends paid to volunteer firefighters that are less than 20 percent of what would be paid to a full-time firefighter are likely to be considered nominal.

Distinctions between paid on-call and true volunteers are important when considering compensation responsibilities for regular city employees who also volunteer or work on-call as a firefighter for the same city. For additional information, see a table at www.lmc.org/overtime.

As with every rule, there are exceptions. Following are several FLSA exceptions that often apply to cities.

Remember, even if an employee meets an exception under the federal FLSA, a city must still comply with the Minnesota Fair Labor Standards Act, which requires overtime pay after working 48 hours in one workweek.

Occasional and sporadic employment

Hours worked in more than one position do not need to be added together for the purposes of calculating overtime if an employee works occasionally or sporadically on a part-time basis in a different capacity from his or her regular capacity. To qualify for this federal exemption, all of the following criteria must be met:

  • The employee must freely choose to work in a different position without any coercion from the employer.
  • The occasional or sporadic work must be substantially different from the employee’s primary work. It is likely that a custodian could work occasionally taking registrations at the community center for classes, whereas an administrative assistant could not.
  • The additional work must be “occasional or sporadic”—meaning infrequent, irregular, or occurring in scattered instances. Thus, a full-time city worker who also responds to fire calls would not likely meet this exception. If you are unsure that the work would meet these tests, the safest course of action is to pay overtime for more than 40 hours worked in both positions combined.

Police and fire

The federal FLSA allows cities to define longer workweeks for police and fire personnel, and that can reduce overtime liability. The federal FLSA also has an overtime exemption for small police departments with fewer than five employees.

Police and fire personnel are also exempt from the overtime requirement of the Minnesota Fair Labor Standards Act. Therefore, police and fire departments with less than five employees are not legally required to pay overtime.

Calculating overtime

With advance agreement of the employee, overtime wages can be paid at one-and-one-half time the regular rate of pay for the actual work performed during the overtime hours. It is recommended that this agreement be in writing. Otherwise, the city must determine a weighted average hourly rate for each workweek, and pay the overtime hours at one-and-one-half times that rate.

More information

The League of Minnesota Cities (LMC) has several FLSA memos available at www.lmc.org (search “FLSA”). If you have questions, contact LMC HR & Benefits staff at (651) 281-1200 or hrbenefits@lmc.org.

Cities recruiting full-time employees for their volunteer or paid on-call firefighter positions can reach out directly to the Public Employees Retirement Association (PERA) at (651) 296-3636 or (888) 892-7372 to navigate through contributions toward PERA and a city’s fire relief pension.

web extra iconAs mentioned above, the League has a table to help guide you through calculating employee overtime.
—Download the table: Determining Employee Overtime (pdf)

Joyce Hottinger is assistant human resources director with the League of Minnesota Cities. Contact: jhottinger@lmc.org or (651) 281-1216.

Read the July-Aug 2018 issue of Minnesota Cities magazine

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