(a) Section
7(p)(2) of the FLSA provides that where State or local government
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 determining overtime liability
under the Act.
(b) Occasional
or sporadic.
(1) The term
occasional or sporadic means infrequent, irregular, or occurring in
scattered instances. There may be an occasional need for additional
resources 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, primary job. However, in order to prevent overtime abuse,
such hours worked are to be excluded from computing overtime
compensation due only where the occasional or sporadic assignments are
not within the same general occupational category as the employee's
regular work.
(2) In order
for an employee's occasional or sporadic work on a part-time basis to
qualify for exemption under section 7(p)(2), the employee's decision to
work in a different capacity must be made freely and without coercion,
implicit or explicit, by the employer. An employer may suggest that an
employee undertake another kind of work for the same unit of government
when the need for assistance arises, but the employee must be free to
refuse to perform such work without sanction and without being required
to explain or justify the decision.
(3) Typically,
public recreation and park facilities, and stadiums or auditoriums
utilize employees in occasional or sporadic work. Some of these
employment activities are the taking of tickets, providing security for
special 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 even where the
need can be anticipated because 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 returns 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 operated by that agency, the
additional work does not constitute intermittent and irregular
employment and, therefore, the hours worked would be combined in
computing any overtime compensation 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
individual performing them must also be in a different capacity, i.e.,
it must not fall within the same general occupational category.
(2) In
general, the Administrator will consider the duties and other factors
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 section (3)), as well as all the
facts and circumstances in a particular case, in determining whether
employment in a second capacity is substantially different from the
regular employment.
(3) For
example, if a public park employee primarily engaged in playground
maintenance also from time to time cleans an evening recreation center
operated by the same agency, the additional work would be considered
hours worked for the same employer and subject to the Act's overtime
requirements because it is not in a different capacity. This would be
the case even though the work was occasional or sporadic, and, was not
regularly scheduled. Public safety employees 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 referee would be considered to be in
a different 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 traditionally 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 secretary could
substitute as a coach for a basketball team or a maintenance engineer
could provide instruction on auto repair on an occasional or sporadic
basis.
