Temporary employee
Susie
1 Post
We have an employee from an employment service working for us as a receptionist (works 40 hours per week). On occasion she has volunteered answering telephones for our call-in programs. We are a state govt agency and I need to know if this is okay, and whether or not we are violating any wage and hour laws by allowing her to volunteer for the extra work. Our regular employees are not allowed to "volunteer" if they are non-exempt, i.e. paid time and 1/2 for hours worked above 40.
Comments
You've got a couple of issues going...
The individual is not the government's regular employee in the main job, since she is from a staffing agency, right? I assume then, you treat her as an independent contract..that's you don't give her specific instructions and monitor her closely as you would a regular employee; and all issues are handled with the staffing agency. If so, you probalby have a better case to make that her duties as a volunteer don't have to be paid.
On the other hand 29CFR553.101, while allowing the public employer to have unpaid volunteers, does state, "An individual shall not be considered a volunteer if the individual is otherwise employed by the same public agency to perform the same type of services as those for which the individual proposes to
volunteer."
The link to 29CFR553.101 is:
[url]http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=29&PART=553&SECTION=101&YEAR=1998&TYPE=TEXT[/url]
If it turns out the person tehcnically is considerred an employee of your agency then it iseems to me, you ned to look at another provision in this section 553.30.
This allows public sector employees to have a second, sporadic or occasional job, with different duties, with the governmental employer and be paid a different rate and not have the hours worked combined with the regular job for overtime determination.
The link to 29CFR553.30 is
[url]http://frwebgate.access.gpo.gov/cgi-bin/get-cfr.cgi?TITLE=29&PART=553&SECTION=30&YEAR=1998&TYPE=TEXT[/url]
Having worked in public sector HR for over 23 years, I strongly recommend that your agency consult with legal counsel as to the compliance and interpretation of these two sections. The US Department of Labor has no reluctance in "burning" a state or local govermental agency on FLSA violations.