Can an Exempt Employee Take on New Work for Extra Pay?

by Evil HR Lady on October 29, 2019

Can full-time, permanent employees do freelance work for our California-based company if that work falls outside their job description? We have an employee who does design work on the side. We need to hire a designer and would be happy to use him on a freelance basis, but he will only do it if we pay him extra for the work. He’s an exempt salaried employee, if that makes a difference.

To read my answer, click here: Can an Exempt Employee Take on New Work for Extra Pay?

{ 5 comments… read them below or add one }

MariaRose October 29, 2019 at 1:42 pm

I don’t blame the employee asking for extra pay for doing designing which I gather is not the job that the company hired this employee to do as an exempt employee. In fact, the work for the designing will definitely put this employee’s hours into the overtime pay status, because this work has to be done outside of the hours required to work for the exempt status, not during those hours.

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Kathy October 29, 2019 at 3:11 pm

This touches on a question about exempt employees that I have always wondered: can an exempt employee take on *any* side gig without having a conflict of interest? Exempt employees need to complete their job regardless of the time it takes. But in practice, if an exempt employee gets done early, his employer will expand his responsibilities to take up the time available. (There’s a minimum hours-per-week expectation in most employers’ minds regardless of the “no hours expectation” of exempt employment. Many will expand expectations until the employee squeaks.) It seems defensible that if an employee checks with his boss saying, “I have extra time and need cash so I’m taking on a side gig doing a thing unrelated to our work for people who aren’t our customers, okay?” the employer could say, “No you’re not unless you can do it while also doing this big heap of new work I’m assigning you because you don’t do enough work here.” Is that not true?

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Mae West October 29, 2019 at 3:13 pm

I don’t understand this at all. If Jonh Smith gets paid 40 hrs/week for Job at Company, why wouldn’t he be able to also be contracted for his freelance side gig–Designs by John–outside the 40 hours? Presumably, he does this already for other entities, and does the work on nights and weekends. Why is there the assumption that he’d be doing the designs during his day job?

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Eric October 29, 2019 at 7:28 pm

There are some instances where a salaried exempt employee could take on a completely separate job, with different duties, and be paid as an independent contractor.

I work for a company that has an employee softball league. One of the salaried exempt folks in the training department of this company is also a softball umpire, and occasionally will be scheduled to umpire games in the company league.

He still gets his normal salary for his normal work, and for the games that he umpires, he’s paid the normal per-game rate for umpires.

(It is normal for sports offiicals to be independent contractors, at least at the amateur level)

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Kristy October 30, 2019 at 5:40 pm

I’m curious to know if the answer (hire someone else) would have been different in the employee in question had a legally-established side business for his design work.

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