NC Register Volume 19 Issue 06 - Office of Administrative Hearings

PROPOSED RULESpurpose of determining overtime compensation under thisSection.(b) "Occasional or Sporadic" - The term "occasional orsporadic" means infrequent, irregular or occurring in scatteredinstances. There may be an occasional need for additionalresources in the delivery of certain types of services which is attimes best met by the part-time employment of an individualwho is already employed by the state. Where employees freelyand solely at their own option enter into such activity, the totalhours worked will not be combined for purposes of determiningany overtime compensation due on the regular, primary job.However, in order to prevent overtime abuse, such hours workedare to be excluded from computing overtime compensation dueonly where the occasional or sporadic assignments are not withinthe same general occupational category as the employee'sregular work.(c) In order for hours of such work not to be combined withhours worked on the primary, regular job, the employee'sdecision to work in a different capacity must be made freely andwithout coercion. The employee's decision to perform suchwork will be considered to have been made at his sole optionwhen it has been made without fear of reprisal or promise ofreward.(d) Typically, recreation and park facilities, university athleticfacilities or other public events may need to utilize employees inoccasional or sporadic work. Employment in such activity maybe considered occasional or sporadic for regular state employeeseven when the need for such work can be anticipated because itrecurs seasonally (the State Fair, for example).(e) In order to be "occasional or sporadic" it is essential that thecharacter of the activity be intermittent and irregular, rather thancontinuous or regular.(f) In order for employment in these occasional or sporadicactivities not be considered subject to the overtime provisions ofthis Section, the regular state employment of the individual mustalso be in a different capacity; that is, it must not fall within thesame general occupational category.Authority G.S. 126-4.25 NCAC 01D .1949 SUBSTITUTION(a) Two persons employed by the same agency may agree,solely at their option and with the approval of the agency, tosubstitute for one another during scheduled work hours inperformance of work in the same capacity. The hours worked ina substituting capacity shall be excluded from the calculation ofhours for which the substituting employee is entitled to overtimecompensation under this policy. This provision will apply onlyif the employees' decisions to substitute for one another aremade freely and without coercion, direct or implied. An agencymay suggest that an employee substitute or "trade time" withanother employee working in the same capacity during regularlyscheduled hours, but each employee must be free to refuse toperform such work without sanction, and without being requiredto explain or justify that decision. Such a decision will beconsidered voluntary when it has been made without fear ofreprisal or promise of reward and for the employee'sconvenience, rather than the convenience of the agency'soperations.(b) Agencies whose employees engage in substitute work underthis provision are not required to keep a record of the hours ofthe substitute work. However, it is strongly recommended thatrecords of this type of arrangement be kept as a matter of goodpersonnel practice. There is also no limit on the period of timeduring which hours worked may be traded or paid back amongemployees. Any agreement between employees to substitute forone another at their own option must be approved by the agency;this approval must be prior to the substitution and the agencymust know what work is being done, who is doing the work, andwhen and where the work is being done. The type of approval(formal, informal, oral, written or otherwise) is left to thedecision of the agency.Authority G.S. 126-4.25 NCAC 01D .1950 VOLUNTEERS(a) Volunteer work does not create an employer-employeerelationship so as require coverage under wage and hour andovertime compensation standards. This rule is intended toprovide guidance to agencies in determining whether serviceperformed is voluntary, and thus exempt from treatment underthis Section.(b) A volunteer is one who performs hours of service for a stateagency for civic, charitable or humanitarian reasons withoutpromise or expectation of compensation for services provided.Service provided by a volunteer is not subject to the provisionsof this Section. However, an individual shall not be considered avolunteer if the person is otherwise employed by the sameagency to perform the same type of services as those for whichthe person proposes to volunteer. Volunteers may receiveexpenses, reasonable benefits, a nominal fee or any combinationthereof without losing their status as volunteers.Authority G.S. 126-4.25 NCAC 01D .1951 OVERTIME COMPENSATIONPROHIBITED: EXEMPT EMPLOYEESNo employee whose position is designated as exempt fromovertime compensation provisions of this Section shall be paidin any way for hours worked in excess of 40 in a work weekexcept as noted in 25 NCAC 01D.1945. This Rule shall not beconstrued to prohibit any agency from adopting and using acompensatory leave ("comp time") policy for executive,administrative or professional employees in accordance with 25NCAC 01E .1006.Authority G.S. 126-4(5), (10).19:06 NORTH CAROLINA REGISTER September 15, 2004628