Unpaid Overtime in Texas—A (Too) Common Problem
One of the most surprising things I have learned in representing Texas employees is the large number of people who are being cheated out of overtime. Most of these employees don’t even know they are being cheated out of overtime and just believe their employers when they are told they are “exempt” or “don’t qualify” for overtime because they are “salaried.” While employees are told a number of stories to justify the fact that they are not getting paid overtime, the fact of the matter is that most employees are entitled to overtime for working more than 40 hours in one week. The other disturbing fact of the matter is that a shockingly large number of employees nationally and in Texas are not getting paid overtime as required by federal law. So it is not uncommon when an employee asks “Am I owed unpaid overtime?” for the answer to be yes.
Texas doesn’t have its own overtime law, but most Texas employees are covered by the federal overtime law–the Fair Labor Standards Act or “FLSA.” This law has a bunch of exceptions, but it generally says that employees are owed time and half for every hour worked over forty in one week. While many employees fall within the exceptions and exemptions, they must be looked at carefully, because employers will often use improper “exemptions” to avoid paying their employees overtime.
While there are a number of ways employers avoid paying overtime that is owed, I have seen the following main categories of failure to pay overtime:
- Misclassification as an “exempt” employee. Sometimes non-exempt employees are just told they are exempt without further explanation. Other times non-exempt employees are given a title such as “manager” or “administrative assistant” which sound like they fall within an exemption. Job titles do not matter and what the boss says does not matter–the actual job duties determine whether an employee is exempt or non-exempt. Every employee working overtime and not getting paid for it should look closely as to whether their job is actually exempt. A good way to do this is by going to the Department of Labor website that helps employees determine if they are covered by the FLSA– http://www.dol.gov/elaws/esa/flsa/scope/screen9.asp.
- Misclassification as an “independent contractor” vs. an “employee.” The rampant misclassification of employees as independent contractors is a major problem for employees and our country for many reasons, including the reason that employment taxes are not being paid by the employers (taking money from our government and giving unscrupulous employers an unfair competitive advantage). Employers also use this misclassification to cheat employees out of overtime. Every “independent contractor” working overtime should look closely to see whether they are considered an employee under federal labor laws.
- Salaried employees. I’ve heard a number of employees tell me that they believed they weren’t owed overtime because they were salaried. Just because you are salaried does not mean that you are not owed overtime. Your job duties, and whether or not you fall within an exemption, determine whether you are owed overtime. Many salaried employees are in fact owed overtime.
- Not getting paid for “off the clock” work. Many employees are required to show up early for a shift or stay late after their shift (i.e. passdown time), but don’t get paid for this extra time. Other employees are required to take time getting ready for work–such as preparing the workplace or putting on special clothes for work–without pay. In general, “extra” time at work for which you are required to be there should be paid. This includes lunch breaks which you work through, but don’t get paid for.
- Altering time records. Some employers actually change the hours worked by employees and recorded by the employees to make sure that no overtime is recorded or paid. Other employers tell employees not to put anything down over 40. These employees, if non-exempt, are owed for this time.
In posts to come, I’ll write in more detail about unpaid overtime violations. Despite the rise in lawsuits for unpaid overtime and more DOL investigations, employers continue to cheat employees out of overtime, and employees should be watchful.
As always, this post does not constitute legal advice for the reasons stated in my disclaimer on my website. Every employee should consult an attorney to get legal advice for their specific employment issue.