Overtime in Texas is governed by federal law and specifically the Fair Labor Standards Act ("FLSA"). Under the Fair Labor Standards Act, non-exempt employees who work more than 40 hours per work week are typically entitled to receive at least one and one half times their regular rate of pay for the overtime hours.
The Act applies to individual employees and enterprises “who in any workweek (are) engaged in commerce or in the production of goods for commerce.” [29 U.S.C. Section 206 (a)]. For most firms to meet the engaged in commerce requirement, the employer must have annual revenues of at least $500,000.
The Fair Labor Standards Act covers the following companies regardless of sales volume:
Hospitals and other institutions that care for the sick, aged, mentally ill, or disabled
Educational institutions including preschools, elementary, secondary, and higher education schools
Local, state, and federal government agencies
The following individuals are not considered employees and therefore are not covered by the Fair Labor Standards Act or eligible to meet the requirements of the provision:
Volunteers
Independent Contractors
Partners
Who is Exempt From Overtime Pay?
The general rule is as follows: Employees are classified as non-exempt by the Fair Labor Standards Act and entitled to overtime pay. This liberal interpretation of the Fair Labor Standards Act is meant “to accomplish the goal of outlawing from interstate commerce, goods produced under conditions that fall below minimum standards of decency” (Alamo Foundation v. Secretary of Labor, 471 U.S. 290 1985). However, exemptions do exist that relieve an employer of overtime pay requirements. Exempt employees typically fit into one of the following categories:
Administrative employees paid on a salary basis a minimum of $455 per week and whose primary duties involve general business operations
Executive employees paid on a salary basis a minimum of$455 per week and whose primary responsibilities are managing the company, directing the work of at least two employees, and having the authority to hire and fire employees
Professional employees paid on a salary basis a minimum of $455 per week and whose work performance requires advanced knowledge, extensive education, innovation, creativity, or talent.
Outside sales employees whose primary duty is selling products or services away from the employer’s place of business
Computer Systems Analysts paid a rate not less than $27.63 per hour and who design, develop, analyze, test, modify, or consult with users about computer systems and programs
Certain agricultural employees
Housekeepers, cooks, babysitters, and chauffeurs who provide domestic services and companionship
Salespersons engaged in selling cars, trailers, boats or aircraft
Highly paid employees earning at least $100,000 per year and who perform one or more of the above exempt jobs
How Do You Know If You Are an Exempt Employee?
The best way to discover your proper pay status (exempt or non-exempt) as an employee is to contact a lawyer that specializes in representing employees. Many overtime exemption classifications are highly case specific and require a careful application of facts to the relevant law. If you cannot contact an attorney who specializes in representing employees, you may contact the United States Department of Labor. The Department of Labor also maintains a very good web site which provides information for employees about overtime classifications. You may access that web site here.
IT IS IMPORTANT TO NOTE THAT JUST BECAUSE YOUR EMPLOYER HAS CLASSIFIED YOU AS EXEMPT DOES NOT MEAN THAT YOU ARE ACTUALLY EXEMPT FROM OVERTIME. IN THE PAST DECADE, IT HAS COME TO LIGHT THAT MANY EMPLOYERS BIG AND SMALL HAVE FAILED TO PROPERLY CLASSIFY THEIR EMPLOYEES PURSUANT TO OVERTIME LAWS.
Common Employer Violations:
Some employers commit the following violations of the Fair Labor Standards Act intentionally to avoid paying overtime, while other employers fail to understand the extent of the law:
An employer miscalculates an employee’s regular rate of pay by failing to include in calculations bonus or other incentive pay for specific shifts worked
An employer does not include in hours worked time spent traveling for job purposes, including work related overnight stays, travel on the weekends, travel between work sites, and work related duties performed while commuting to and from work
An employer misclassifies an employee as exempt
An employer pays employees cash of the books without filling out W-2 forms and believes the lack of records alleviates the duty to pay overtime
An employer requests that an employee who works in excess of 40 hours one week take time off the following week to obtain an average of 40 hours worked per week
An employer requires an employee to seek medical attention during the workday for job related injuries, but fails to include time spent waiting for and receiving treatment in hours worked
An employer shortchanges an employee’s hours by not paying for short 5-20 minute breaks or for lunches spent working
An employer establishes a Collective Bargaining Agreement between the company and its employees that waives employees’ rights, including what hours must be counted as hours worked
An employer knows or has reason to know that an employee is continuing to work after hours and the employer is benefiting from work performed, but does not include the time in hours worked
An employer does not treat time that an employee spends correcting errors or mistakes in his or her work as time worked
An employer does not include in hours worked time that an employee spends waiting for work and is without a task, but is still required and allowed to be on the job
What to Do if Your Employer Denies Your Right to Overtime Pay?
Contact an attorney immediately, and preferably an attorney who routinely represents employees in employment litigation. To preserve your rights under the law for this type of illegal employment action, you should act quickly as overtime claims are typically subject to a two year statute of limitations. Lastly, keep all records related to employment and hours worked. These records may prove invaluable in a later lawsuit.
If you feel that you have experienced overtime violations or that your employe has not paid you everything you are owed and wish to speak to an attorney at the Law Office of R. Scott Cook in Austin, Texas, please submit a case evaluation form or contact us by email at info@rscooklaw.com.
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