UNC CHARLOTTE PERSONNEL INFORMATION MEMORANDUM

PIM 37

EMPLOYMENT - Wage and Hour Considerations for SPA Employees with Two University Jobs

DATED:  May 8, 1998

Category:  Employment and Staffing

Contact:  Director of Employment and Staffing – ext. 4272

1. Reference

The following is quoted from an Office of State Personnel Memorandum dated November 3, 1989, for your information and reference.

2. General

A.      There are times when it becomes necessary and desirable for SPA employees on a university campus to have additional employment with the university in a teaching or instructional role. The policy on Total Compensation and Total Employment states that an employee may not receive additional compensation for additional work performed for the State except as provided under the dual employment policy and under the overtime policies. Therefore, the employment of an employee who is FLSA exempt as executive, administrative or professional is an exception to the dual employment policy and must be requested on an individual basis.

B.      However, in some situations the employee is in a position which is not exempt from overtime pay policies. In those situations, and unless the work can be considered as "occasional and sporadic," the additional hours worked by the non-exempt employee in a teaching/instructional role for the university must be considered overtime and must be compensated at a premium rate on an overtime payroll. This situation is often complicated by the fact that many of these teaching/instructional roles are not paid on an hourly basis, but rather in a lump sum as part of a contractual arrangement.

C.      If the SPA employee is in a permanent, full-time (forty hours/week) non-exempt FLSA position, then ANY hours worked in an additional teaching/instructional role for the university must be considered overtime and compensated at a premium rate. The computation of the premium rate for overtime payment is computed as follows:

1.       The employee must make a reasonable estimate of the number of hours usually spent in preparation and in teaching/instruction for the duration of the teaching/instructional assignment.

2.       If a lump sum amount for the teaching/instruction has been agreed upon, divide the lump sum amount by the number of hours to get an hourly rate for the work.

3.       Take the employee's hourly rate on his full-time job and add it to the hourly rate determined for the teaching/instructional work and divide by 2. Multiply this figure by 1.5. This is the premium overtime rate which must be paid for all hours worked by the employee over 40 in a work week in the teaching/instructional role.

D.      As you can see, this situation may call for additional funds to pay the premium rate or for renegotiation of a contract. In any event, the university is responsible under state policy and federal law/regulation for payment of this overtime. You should be aware that the fact that a contract has been entered into is not legally recognized defense if the overtime has not been paid. The U.S. Department of Labor, Wage and Hour Division has consistently been upheld in court on its position that employees cannot bargain away their rights under the FLSA. Obviously, it is to the university's advantage to limit this practice as strictly as possible. I strongly recommend that you communicate with your managers about the difficulties created by this situation and ask that they make every effort to limit these situations as much as is possible.

E.       It is not necessary to process personnel forms for overtime payments, However, forms must be processed for payments that are approved for exceptions to the dual employment policy for FLSA employees'.

F.       Department chairs contemplating an offer of additional employment to classified (SPA) employees in an instructional or teaching capacity are requested to contact the Director of Employment and Staffing to ensure such employment is in compliance with the policies and procedures quoted above.