n EVIL HR LADY
DILEMMA OF THE MONTH
CAN AN EXEMPT EMPLOYEE
TAKE ON NEW WORK
FOR EXTRA PAY?
by Suzanne Lucas
ILLUSTRATION: JOHN CHASE
C
an 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.
A
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comstocksmag.com | October 2019
THE CORRECT ANSWER SHOULD BE,
“YOUR EMPLOYEE IS AN ADULT, YOU
ARE AN ADULT, YOU SHOULD BE ABLE
TO NEGOTIATE WHATEVER YOU BOTH
FIND FAIR.” However, we all know
that’s not going to be the actual answer.
The answer is that it’s much more
complicated.
“If he is exempt — which you said
he is — and the new work either quali-
fies as exempt work or otherwise won’t
destroy the exemption, doing the ad-
ditional work should not create a prob-
lem,” says Ann Fromholz, a California
employment attorney, who I reached out
to for some clarity on this issue. “I doubt
that design work meets the criteria for
an administrative exemption under Cal-
ifornia law, so you need to ensure that
the employee — even with the design
work — still will be primarily engaged in
exempt duties.
“In addition to the above, you need to
ensure that he is paid correctly. You use
the term ‘freelance,’ but the employer
likely will run into trouble if it attempts
to pay him as an independent contrac-
tor for the extra work — both because
the extra work probably does not qualify
under the new ABC test for independent
contractors and because he already is an
exempt employee of the company. The
employer may increase his salary to ac-
count for the extra work. If the employ-