When state or local government employees, at their option, work occasionally or sporadically on a part-time basis for the same agency in a capacity different from their regular employment, the hours worked in the different job do not have to be combined with the regular hours for the purpose of determining overtime liability.” 29 U.S.C. § 553.30(a). DOL defines “occasional or sporadic as infrequent, irregular or occurring in scattered instances.” 29 C.F.R. 553.30(b)(1). DOL has determined (29 C.F.R. § 553.30(c)(1)) that hours worked “will be excluded only where the occasional or sporadic assignment is not within the same general occupational category as the employee’s regular work.” Moreover, “the decision to work in a different capacity must be made freely by the employee and without concern, implicit or explicit, by the employer.” 29 C.F.R. § 553.30(b)(2). The employee must be free to refuse to perform the work without fear of sanctions and without being required to explain or justify the decision.
The fact that the activity is recurring, such as at a county fair where a county employee takes tickets or provides security, does not necessarily mean that the activity will not meet the “occasional or sporadic” test. Employment in such activities may be considered occasional or sporadic for regular employees of state and local governments even though the need can be anticipated seasonally. It is important to note that “regular part-time jobs, where the employee works scheduled hours, will not qualify under the occasional and sporadic provisions. Moreover, performance of work similar to work regularly performed, even after regular working hours, will not qualify. In such cases, the hours worked in both jobs must be aggregated and overtime calculated.” 29 C.F.R. § 553.30(b)(3)