I am employed in an exempt position in my primary job and non exempt in my secondary job...both paid for by th

Question

I am employed exempt in my primary position and non exempt in my secondary position, both as a nurse for a large health care system. Human resources is now telling me I must limit my hours worked in the secondary position(non-exempt) to 40% of my total hours. I am part time and do not ever go over the 40 hr work week. What gives?

Answer 1

Under the Fair Labor Standards Act (FLSA), in order to be considered "exempt" from overtime under Section 13(a)(1), your primary duty must be exempt work. Unfortunately, neither the FLSA nor the accompanying regulations (Title 29, US COde of Federal Regulations Part 541) give a crystal clear definition of what constitutes "primary duty." So I am guessing that your HR department is just playing it on the safe side, to ensure that they remain in compliance with the FLSA by ensuring your primary duty is always the one in which you spend the majority of your time, i.e., exempt work, even if you never get into an overtime status (i.e., over 40 hours per week). Technically, only 51% of your time would have to be spent in the exempt category for it to comprise "the majority of your time," but that is walking awfully close to the line and when you get in the habit of doing that, you are bound to cross over every once in a while.

Also, since you mentioned that the firm you work for is quite large, I suspect that they are very leery about inadvertently setting a precedent for other RN's in their employ by allowing you, as an "exempt" employee, to work a larger percentage of your time in a non-exempt category than they are comfortable with just because you are a part-time employee. If a full-time employee in your situation were to have, as his/her primary duty, the non-exempt work, then he or she would lose the exempt status and your employer would have to begin paying overtime or face being found in violation of the FLSA.

For more information on the FLSA and the 13(a)(1) exemption, you can call the US Department of Labor's Wage and Hour Division at 1-866-4US-WAGE or go to www.dol.gov.

Hope this helps.