Sometimes apparent solutions to business problems appear too good to be true. This adage applies to many attempts by employers to avoid the overtime obligations imposed by the Fair Labor Standards Act. That law, of course, requires employers to pay time and one-half overtime if a non-exempt employee works more than 40 hours in a given workweek.

One clever idea to avoid paying overtime involves splitting the individual employee’s working time into two jobs. The employer considers the work to be distinct, meaning that it would not pay overtime unless the employee exceeds 40 hours per week in one of the two roles. Unfortunately for employers, the Department of Labor has long taken the position that for the vast majority of employees, all time spent working for the employer will be consolidated for purposes of reaching the 40-hour weekly threshold.

If employees require the same general skills and related duties, the two jobs will be combined for FLSA purposes, even if they perform different tasks during the week. In order to avoid such consolidation, the work must be distinct and unrelated, fulfilling different company needs and involving different skills and duties. For example, we had a trucking company client that hired its controller to come in on weekends to wash trucks. The company concluded that the jobs were distinct enough in terms of duties, responsibilities, and schedules that they constituted separate jobs for FLSA recordkeeping purposes.

Absent such stark distinctions between the employees' duties, work that appears to share common skills and purposes will be combined for purposes of determining overtime pay obligations.

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