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Brandon, Esq.
Brandon, Esq., Lawyer
Category: Employment Law
Satisfied Customers: 1952
Experience:  Has received a certificate of recognition from the California State Senate for his outstanding legal service.
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An employer in Georgia has an employee that works a non-exempt

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An employer in Georgia has an employee that works a non-exempt job during the day - 40 hours per week - $10.00 per hour. The employee wants to make more money and work at night in a position that is exempt. Would the employer need to pay overtime ? Can you please direct me to case law or stautiry provision to support your response please ? Thank you.

Employment-LawExpert :

Hello and thank you for your question today. Are you online with me?

Customer:

yes

Employment-LawExpert :

Welcome to the chat

Employment-LawExpert :

The Fair Labor Standards Act sets out minimum wage and overtime requirements that apply to any employer who engages in interstate commerce. When a non-exempt (hourly) employee works more than forty hours in a week, the employer must pay the employee one and one half times their regular rate of pay for every hour over forty worked that week. The only way that an employee can actually be deemed exempt is if they are engaged in executive, administrative, or professional jobs, and paid on a salary basis. Because the Federal law is more stringent than the Georgia law, an employer who is in compliance with federal law also complies with Georgia law. So, you mention that the employee wants to make more money and work at night. The employer cannot just create a salaried position and require the employee to have the job duties that are non exempt, as well as those that are exempt and expect to not pay overtime. If the majority of the employees duties are deemed to be non-exempt, the employee would be considered a non-exempt employee and the employer would have to pay the overtime.

Employment-LawExpert :

Is that what the employer is trying to do?

Customer:

The employer just wants to make sure they do not violate overtime laws. So if the e/ee works 40 hours per week in a non-exempt job, and takes on extra hours at night in an exempt position, since the main job is non-exempt they will need to pay overtime for all hours over the 40 hours ?

Employment-LawExpert :

That is correct. The only way around this would be to hire someone on at two different positions, and have them sign a contract stating their job duties.

Employment-LawExpert :

Then, in the exempt job, they would have their salary, but would be able to work more hours based on that

Employment-LawExpert :

It would be considered a completely separate job.

Employment-LawExpert :

More about the FLSA guidelines concerning Exempt employees and the job requirements to be in this class can be found here:

Customer:

If they prepare that kind of contract aren't they trying to just get around the FLSA

Employment-LawExpert :

So, just having a contract stating this person is an exempt employee would not be sufficient to make them an exempt employee. However, if they were hired in two separate positions, it would be as if they were working for a completely different company. Does that make sense?

Employment-LawExpert :

Then, if investigated, the Dol's wage and hour division would only look at the job responsibilities of the second job to determine eligibility

Customer:

I think so. I found a FLSA opinion letter dated March, 2005 which addresses this but not sure still valid.

Employment-LawExpert :

It depends on exactly what it said. I can only tell you what the current state of the law is, not what it was in 2005

Customer:

thank you. the opinion said cannot be both exempt and nonexempt

Employment-LawExpert :

That is still correct. The same position cannot be both exempt and non-exempt. This is why you would have to create a completely separate position, with two completely different salaries and contracts. You just need to make sure the responsibilities do not spill over. Does that make sense?

Customer:

yes. thank you.

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