You Deserve to be Paid for Every Hour You Put in at Your Job
Our Texas-based employment lawyers get lots of questions about overtime. Here are the answer you're looking for:
Am I eligible for overtime?
A worker’s eligibility for overtime pay depends on how the individual is categorized under the Fair Labor Standards Act (FLSA) and other laws. Workers are generally divided into two categories: “exempt” and “non-exempt.” Only “non-exempt” workers are legally entitled to overtime pay.
Exempt employees are typically those in executive, professional, and administrative jobs, such as lawyers, doctors, accountants, outside sales professionals, and technology workers. Certain seasonal and domestic service jobs also are exempt. Courts typically look at a worker’s specific job duties, rather than general job title, in determining exempt status.
When is overtime due?
For covered, non-exempt employees, the Fair Labor Standards Act (FLSA) requires overtime pay at a rate of not less than one and one-half times an employee’s regular rate of pay after 40 hours of work in a 7-day “work week” (“time-and-a-half”). Some exceptions to the 40 hours per week standard apply under special circumstances, including police officers and fire fighters employed by public agencies and employees of hospitals and nursing homes.
What is the overtime pay rate?
The FLSA and various state laws typically require employers to pay workers “time-and-a-half” for every hour an employee works over 40 hours in a work week. A “work week” is 7 consecutive days. That means that an employee who typically makes $10 an hour must be paid $15 per hour for overtime. For non-exempt employees whose normal pay is not an hourly rate, their regular pay will need to be converted to an hourly equivalent.
Can my employer average two weeks of time or only pay overtime for over 80 hours in a bi-weekly pay period?
No, except for a limited set of jobs, overtime must be calculated for each 7-day work week. An employee who works 50 hours the first week of a pay period and 30 hours the second week of a pay period must be paid 10 hours of overtime for the first week. The employer cannot refuse to pay overtime because the employee’s work hours averages to 40 hours per week for the whole pay period.
Can my employer deduct time for lunch and breaks?
Texas law and the FLSA do not require employers to provide breaks for meals or brief rest periods, but if breaks are provided, employers must follow the FLSA and the U.S. Department of Labor’s guidelines. Meal periods, usually at least 30 minutes long and during which an employee is relieved from all work, are unpaid. If meal periods are automatically deducted from their pay, then the employees should not be required to perform any work during that time (see below).
Breaks or brief rest periods, usually no longer than 20 minutes, that are not provided for purposes of eating a meal, are compensable time periods for which employees must be paid. Employees should check the employer’s written policies about short breaks. An employee may be disciplined for taking longer breaks than allowed, which can include a deduction for the excess time above the allowed amount of time for the break or even termination.
Am I entitled to be paid for meal breaks that I work through?
Yes, non-exempt employees must be paid for every hour that they work. Many employers violate the FLSA by not paying employees for meal breaks that often are interrupted for work or for off-the-clock work that accumulates every day.
Under the FLSA, you must be relieved of all duties during your meal break. If this time is interrupted at any point for work, whether for a phone call or e-mail, you are eligible to be paid for that time.
Many employers also automatically deduct a lunch period daily, even though many employees never take a lunch break. The time you put in at work adds up every day and if you are not compensated for off-the-clock work you may have a claim for back wages and overtime under the FLSA.
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Should I be paid for overtime even if it wasn’t authorized?
Yes. Under the Fair Labor Standards Act, an employer who has reasonable knowledge that an employee was required or permitted to work should compensate that employee for his or her time, even if the company requires overtime to be authorized beforehand.
How many hours per day or per week can an employee work?
The FLSA does not limit the number of hours per day or per week that employees aged 16 and older can be required to work.
Is extra pay required for weekend or night work?
Extra pay for working weekends or nights is a matter of agreement between the employer and the employee. The FLSA does not require extra pay for weekend or night work. The FLSA does require that covered, non-exemptworkers be paid not less than one and one-half times the employee’s regular rate for time worked over 40 hours in a 7-day work week.
When is double time due?
The FLSA has no requirement for double-time pay. This pay rate is a matter of agreement between an employer and employee.
Can my employer compensate me for overtime with something other than money?
No. The law currently requires private employers to compensate their workers for overtime hours with overtime pay. A private employer may not offer “comp time” or extra paid time off in lieu of additional pay for overtime. Public sector workers, however, may be given comp time instead of overtime pay.
How can I recover unpaid overtime I am owed?
The FLSA and state laws allow a worker who has been wrongly denied overtime – whether by being misclassified as exempt or as an independent contractor, required to work off the clock, or simply not being paid – the right to sue his or her employer for unpaid wages as well as other damages and penalties. It is important to keep in mind that the laws protect a worker who sues his or her employer for unpaid overtime from retaliation in various forms, including firing and demotion.
Can I get fired for complaining about unpaid overtime?
That’s a fair and commonly-asked question. The FLSA protects workers who demand fair payment for overtime by imposing both criminal and civil penalties on employers who retaliate against them. This protection is important because of the fear an employer can impose on an employee who cannot afford to lose his or her job, yet is not getting paid overtime required by law. Employees are protected not just for formal complaints made in court or to the Department of Labor, but also to some informal complaints made directly to employers. Illegal retaliation is not limited to just being fired, though. An employer also cannot retaliate by demoting the employee, reducing his or her hours, shifts, or duties, giving false poor performance ratings, or “blackballing” an employee to unfairly prevent future employment opportunities.
What should I do if I think I’ve been wrongly denied overtime pay?
Contact an experienced labor and employment attorney who can examine your case, help you weigh your options, and negotiate with your employer when possible.
What if I’m paid a salary?
Salaried workers are also entitled to overtime pay for all hours worked over 40 hours in a work week if the employee is classified as non-exempt under the FLSA. To see if you may be misclassified as exempt, click here.
Are you really salaried?
Being salaried means you get paid the same amount for each pay period, even if you only worked 35, 25, or even 10 hours. The salary must be a guaranteed amount. If your employer can reduce your pay based on the quality or quantity of your work, or for other special situation, then the employer has destroyed your status as being salaried. Be sure to check your employer’s employment policies – and your paystubs – for possible reductions.
Remember: you may still be entitled to overtime pay even if your employment contract or paystub reflects a “salary” or other “fixed” rate.
Are you exempt?
Most people think that just because they are paid a salary, they are automatically exempt and not entitled to overtime. Being paid a salary is NOT the same as being exempt.
For overtime purposes, employees are either “exempt” or “non-exempt.” Non-exempt employees are entitled to overtime pay. Exempt employees are not.
Generally, to be “exempt” requires both of the following criteria to be met:
- The employee must be paid a salary or fee (not hourly) of more than $455 per week, and
- The employee must perform the duties of an exempt employee.
An employee who is paid on an hourly basis is “nonexempt” no matter what kind of work she does (except for doctors, lawyers, and teachers).
An employee who is paid a salary is still “non-exempt” unless she also performs exempt job duties, which generally fall into three categories: Executive, Administrative, and Professional.
Under the Fair Labor Standards Act, a person who is a true independent contractor is not entitled to overtime pay from the company that hires the person under a contract. Just because the company refers to you as an “independent contractor,” however, does not mean you are an independent contractor. You may actually be an employee – even if you work under a contract or are paid by the job or assignment rather than by the number of hours you work. If you are actually an employee and not an independent contractor, you are likely entitled to be paid for overtime. Read more
Courts will look at several factors to determine whether you are an employee or an independent contractor. The U.S. Supreme Court established the widely-accepted “economic reality” test based on five factors:
1. The degree of control exercised by the alleged employer;
2. The extent of the relative investments of the alleged employee and employer;
3. The degree to which the worker’s opportunity for profit and loss is determined by the employer;
4. The skill and initiative required to perform the job; and
5. The permanency of the relationship.
Courts will use these factors to determine whether the overall “economic reality” indicates the worker is so dependent upon the employer that the worker should be considered an employee.
In determining how to apply these factors, a court will look at facts such as whether you do all of your work for one company or for several companies. An employee generally sells only his or her time and labor, and only to one employer, and is therefore far more dependent on the employer. An independent contractor invests in supplies and equipment, essentially runs his or her own business, and is more likely to have a “customer” base of employers, and therefore does not depend as much upon work from any one particular source. Another question that will be asked is whether you decide when you are going to work for the company or whether the company sets your schedule. Employees are instructed how and when to perform their work. Independent contractors decide for themselves how and when they are going to work on specific assignments. Is the amount of profit or loss you are going to make from a particular job or assignment dependent on how you decide to price your work? Or does the company decide how much you will be paid? Independent contractors generally set their own pricing.
The analysis of whether you are an employee or an independent contractor is a complex one. If you have questions as to whether you are truly an employee, please contact Jackson Spencer Law online or call us at 800.596.5074 for a free consultation and evaluation of your personal employment law claims.
Even if You Are Salaried, You Could Still Be Entitled to Overtime
Exempt employees are not entitled to overtime pay. Hourly workers (except teachers, lawyers, and doctors) are “non-exempt” and, therefore, entitled to overtime pay. Even if you are a paid a salary, however, you may still be entitled to overtime pay.
Exempt employees are those employees who:
- Receive a salary of at least $455 per week, and
- Perform the duties of an exempt employee.
Are You Really Salaried? Read more
- Being salaried means you get paid the same amount for each pay period, even if you only worked 35, 25, or even 10 hours.
- The salary has to be a guaranteed amount. If your employer can reduce your pay based on the quality or quantity of your work, or because you missed work in other situations, then the employer has destroyed your status as being salaried. Be sure to check your employer’s employment policies — and your pay stubs — for possible reductions.
- Remember: it does not matter if your employment contract or pay stub states that you are a “salaried” worker. The facts of your work situation are the determining factor.
What Are the Duties of an Exempt Employee?
There are three main categories of exempt job duties: professional, executive, and administrative. Labels or titles do not matter. If your job duties fall into any of these three categories, you may be an exempt employee.
1. Administrative Job Duties
Exempt administrative job duties are the most difficult to classify. Even if you perform administrative tasks, or your decisions could result in financial loss to the company, you may be nonexempt.
- Administrative workers are exempt when their primary duties are:
- Performing non-manual or office work directly related to the management or general business operations of the employer or its customers; and
- Exercising independent judgment and discretion on important matters.
- Some examples of administrative duties are duties related to functional areas of the company’s operations, including tax, finance, accounting, budgeting, auditing, insurance, quality control, purchasing, procurement, advertising, marketing, research, safety and health, human resources, public relations, government relations, computer networks, the Internet and database administration, and legal and regulatory compliance.
- Exempt administrative employees do not include those employees who produce or sell the company’s “product.” You may still be considered administrative if your job is to be an advisor or consultant to customers on administrative matters.
- Performing administrative duties is not enough. To be exempt duties, the duties must be performed with a high level of judgment and discretion, including dealing with overall company policies or operations, being able to define or deviate from policies, and having authority to commit the company in significant financial matters.
Contact us to see if you were misclassified as an exempt administrative employee.
2. Executive Job Duties
Don’t be misled. Even if you have a fancy job title, you are called a “manager” or “assistant manager” or you are considered “the boss,” you may still be nonexempt and qualify for overtime.
- Exempt executives are those employees who:
- Have authority to make, or whose recommendations carry special weight in making, hiring, firing, or job status decisions;
- Regularly supervise two or more full-time employees (or the equivalent in part-time employees); and
- Manage or are in charge of an organizational unit or shift when on duty.
Contact us to see if you have been misclassified as an exempt executive employee.
3. Professional Job Duties
Even if you have a specialized degree or credential, you have to actually practice in that profession to be considered exempt as a professional. For example, computer professionals working in tech support or installation, or CPAs who only do bookkeeping, are not performing exempt duties, and are likely entitled to overtime pay.
- Exempt professionals generally include:
- Professional working in most of the traditionally recognized “learned professions”: lawyers, doctors, teachers, accountants, and engineers.
- Generally, those professionals who apply judgment and discretion in their work after acquiring specialized training, education, or credentials.
- Certain computer-related jobs, including programmers, systems analysts, and systems engineers.
- Contact us to see if you have been misclassified as an exempt professional employee.
If you have questions about the FLSA and whether you have been paid correctly, contact the lawyers at Jackson Spencer Law (online or 800.596.5074) for a free consultation and evaluation of your personal employment law claims.
Tracking Your Hours: What to Do if You Think You Are not Getting Paid for All Hours You Work.
All hourly wage earners, and even non-exempt, salaried workers can take some simple steps to make sure they are getting paid for all hours worked and for all of their overtime.
1. Your employer likely tracks the time that you work. You should, too. Keep a copy of all of your daily clock-ins and clock-outs. If your employer does not give you the time you have worked on a daily basis, pays you a salary even though you are non-exempt, or requires you to do work “off the clock” or before or after your shift, write down the times you clock in and clock out, for example, in a small journal that fits into your pocket, purse, or briefcase.
2. Make a copy or take a picture of your shift schedule if it shows you are working more hours than you are being paid.
3. Make sure you count all work time, not just when you clock in and out.
4. Look at your pay stubs. Is all of the time you worked reflected on the pay stub? Did you get paid time-and-a-half (1.5 times your hourly wage) for all hours worked over 40 hours in a work week?
5. Ask for your employer’s written policies on how they calculate your pay and overtime, read them, and make sure you understand them.
If you believe you are not getting paid for all of your hours worked or your overtime, contact the Employment Lawyers at Jackson Spencer Law (online or 800.596.5074) for a free consultation and evaluation of your personal employment law claims.
Common unpaid overtime scenarios:
- You work “off the clock” whether you are told to not clock in or clock out and continue working.
- You are not allowed to record accurate hours.
- You are not paid for all training time.
- You are not paid for pre-shift or post-shift work even though it is necessary to perform your job.
- You are not paid for hours worked at home or away from your employer’s place of business.
- You are required to take time off work in the future rather than receive overtime pay now.
- You work through lunch, but are not paid for the lunch period.
- You are not paid for breaks.
- You are forced to work over 40 hours for straight-time pay to “make up” for any week you worked less than 40 hours.
- You are forced to execute a written waiver of full payment for overtime hours in exchange for immediate partial payment.
- You work in more than one position for your employer and the employer calculates your work hours separately for each position (rather than adding together the hours worked from each position).
- You are not being paid for time spent on required work-related driving (excluding daily commute time).
If you believe that your current or former employer has violated the law by failing to pay you overtime wages at the appropriate overtime pay rate, please the lawyers at Jackson Spencer Law (online or 800.596.5074) for a free consultation and evaluation of your personal employment law claims.
Employees must be paid for all work time.
You punch in, you punch out, and you receive a paycheck. And you trust that your employer calculated your pay correctly. If you are an hourly employee (or even a non-exempt, salaried employee), you should look closely at your paycheck and make sure you are getting paid for all hours worked. There are many ways an employer (knowingly or not) can prevent an employee from getting paid for all hours worked. Read more
“Work time” is potentially any time spent performing job-related activities, even when “off the clock” if the employer knows or could easily have found out an employee was working while not clocked in for work. Time spent performing required tasks before and after an employee’s paid shift also can be work time. An employee may not “volunteer” to work, or be forced to clock out, and still work without being paid. Short breaks, if allowed, generally count as work time, but meal periods do not. Required training time also should be counted as work time. Some on-call time, waiting time, and travel time will count as work time.
If an employee’s work time adds up to more than 40 hours in a 7-day work week, then the Fair Labor Standards Act (FLSA) requires the employer to pay the employee 1.5 times his or her normal hourly rate for all work hours that exceed 40 hours. Please see our wage and overtime tracking tips page to help you track your work time. If you feel you have not been paid for all hours worked, or for overtime, contact us now.
“Off the Clock” or Volunteer Work
One of the most common ways in which employees are wrongly denied overtime pay is by being forced to do part of their jobs “off the clock.” Whether it is prep work at the beginning of a shift, cleaning and closing tasks at the end of a shift, or doing work at night or on the weekends, employees have a legal right to be paid for all of the time they spend on the job performing tasks that are necessary to the job. Off the clock work not only prevents employees from being accurately paid for their efforts, it also can deny employees overtime pay by requiring them to work more than a 40-hour work week without paying the overtime rate required by law.
Most employers will have a policy, written or not, that an employee may work for only 40 hours in a work week. Some employers may try to deny overtime because it is not allowed or requires prior approval. Other employers may ask an employee to “volunteer” their time and work for no pay. In all of these cases, if the employer knew or could easily have discovered that the employee was working, the time counts as work time and the employee must be paid for it, even if it causes the employee to go over 40 hours in a work week.
The off the clock protection also extends to non-exempt, salaried employees. The law also requires these wage earners be paid for any “take home” or weekend work.
Pre-Shift Work and Post-Shift Work
Sometimes, there are required job duties or meetings that occur before clocking in and after clocking out. If these tasks are necessary for performing the job, they count as work time. For example, often a call center worker’s work time is tracked only when the worker is logged into the phone system and able to accept calls. Before logging in to the phone system, however, she is required to read work emails or memos, or spend several minutes opening and signing into computer programs necessary for the performance of her job. Similarly, at the end of her shift, she logs out of the phone system but then must spend several minutes signing out of these programs or completing other end-of-the-day tasks. The amount of time these pre- and post-shift tasks take likely still counts as work time.
Meals and Breaks
In Texas, employers are not required to allow breaks or meal periods, but if they do, the employers must follow the requirements of the FLSA. If a break is allowed to eat a meal (typically 30 minutes to an hour), then the meal break generally does not count as “work time.” An employee on a meal break, however, must be relieved from performing any work during this time. If an employee is required to work while eating, then the time is still compensable work time.
A break or rest period of a short duration, other than meal times, are usually 20 minutes or less. This time is generally counted as work time. Employees should check the employer’s written policies about short breaks. An employee may be disciplined for taking longer breaks than allowed, which can include a deduction for the excess time above the allowed amount of time for the break or even termination.
Employer-mandated training time, especially if during an employee’s normal shift and related to enhancing the employee’s work, will generally count as work time. Suggested training, for which the employee will not suffer any negative results if the employee does not attend – particularly if the training is outside the employee’s normal shift – is generally not work time.
On-Call Time and Waiting Time
Under some circumstances, time that an employee is required to be “on call,” meaning ready and available to start working on short notice, counts as work time. Whether on-call time counts as work time must be assessed on a case-by-case basis, but generally if an employee is required to be “on call” at the employer’s location or otherwise is unable to effectively use that time for his or her own purposes, then the employee should be paid for that time.
Similarly, if part of an employee’s job is to wait for a task to be assigned while at his or her workstation, like a firefighter at a fire station waiting for an alarm, then he or she has been “engaged to wait” and should be paid for that time. On the other hand, if the employee is simply waiting to be hired or “waiting to be engaged”, then that time is not compensable work time.
Whether travel time is work time depends on several factors. If the employee is not performing any work on the trip, or the trip is just the employee’s normal commute to and from the workplace, then the travel time is generally not work time. Travel time may be work time, however, according to the following guidelines:
- Travel that is all in a Day’s Work: Traveling from one worksite to another throughout the day as part of the employee’s regular duties is work time, except for the trip from home at the beginning of the day and the trip to the employee’s home at the end of the day.
- Special One Day Assignment in Another City: Travel that does not require an overnight stay but does include travel to another city from home and then back home the same day is work time. The employer may deduct or not count the time the employee would normally spend on his or her daily commute to and from the regular worksite.
- Overnight Travel Away from Home Community: Traveling for work during an employee’s normal working hours, even if not on a normal work day, is compensable work time, except for bona fide meal periods during which business was not discussed. Time traveling for work that falls outside of the employee’s normal working hours, if a passenger in a vehicle, will not count as work time unless the employee must work during that time or is required to help or assist the driver. Time spent driving a vehicle for the work trip generally does count, except for bona fide meal and sleeping periods.
Undocumented workers are still protected under the law and must be paid the legally required wages. Courts will require an employer to give back pay to improperly compensated employees even if they are not legally in the United States. Courts will not allow employers to raise immigration issues when the employee sues the employer for payment of minimum wages or overtime.
If you are an undocumented worker who believes you have not been paid in accordance with the law, contact the Lawyers at Jackson Spencer Law (online or 800.596.5074) for a free consultation and evaluation of your personal employment law claims.
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The attorneys at Jackson Spencer Law are here for you. We know the law — and we know the rights and protections that employers owe to their workers. Whether it’s negotiating a severance package or a settlement with an employer, navigating the complexities of a whistleblower case, or taking a discrimination lawsuit to court — let our Texas legal team go to work for you.
An experienced trial lawyer and CPA known for her aggressive, organized, and highly effective litigation style, Jennifer Spencer is a champion for the rights of those who have been wrongfully terminated, discriminated against, sexually harassed, terminated after whistleblowing, passed over for promotions or otherwise wrongfully treated in the workplace.
Neal Bridges approaches every employment matter with the understanding that he’s not only delivering justice for his clients, but also peace of mind and hope for the future. He is experienced in a wide array of employment law situations, from negotiating severance agreements to representing clients in litigation over wrongful termination, workplace discrimination, or retaliation.
James Hunnicutt’s entire professional history has been focused on advocating for those who have been taken advantage of and treated unfairly. He draws on his background as a consumer protection lawyer to advocate for employees who have been treated unfairly in the workplace, and he works aggressively and thoroughly to vindicate employees’ rights.
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