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Wage & Overtime Claims

Fort Worth Employment Attorney :: Dallas Employment Attorney :: Wrongful Termination Lawyer

Wage & Overtime Claims

flsa wage minimum wage payday lawyer attorney dallas texas fort worth overtime hourly salariedTexas and Federal law protects your rights to receive compensation for the work you perform. Employees may be paid on a salary or hourly basis. Not all employees may be paid on a salaried basis. If you are paid on an hourly basis or should be paid on an hourly basis then you have a right to be paid your hourly rate for each hour worked, receive overtime pay at one and a half times your regular rate of pay and to receive no less than minimum wage (for most employees). Employee claims may fall under both the federal Fair Labor Standards Act and the Texas Payday Law. Your employer may be skimming substantial amounts of money each year out of your pocket for work you performed. Regardless of how much money you make, any money lost from your paycheck can have a big impact on you and your family. This page will help you understand wage and hour laws in Texas, whether you are being paid properly for your work and how wage and overtime attorney Adam Kielich can help protect your rights.

Salaried vs. hourly

The first issue that can affect payment of wages in Texas is whether the employee is hourly or salaried. Hourly employees under FLSA and the Texas Payday Law are paid for each hour of work performed for the employer (the definition of “hour of work” will be discussed later) and may be subject to overtime pay. Salaried employees are paid for performing a job, regardless of the number of hours worked. Whether they work thirty hours or forty hours, the pay is the same. However, not all salaried employees are exempt from overtime provisions. A very small number of employees are salaried but not overtime-exempt, which means even though they are paid the same rate for any and all hours worked under forty hours in a pay period they must still be paid at least minimum wage and must be paid overtime pay for all time worked over forty hours.

Normally when people speak of salaried employees they are referring to exempt, salaried employees who are not eligible for overtime pay. Employees are not exempt just because they are paid a salary or classified “salaried”. The FLSA and Texas Payday Law give specific requirements for employees to be overtime exempt. Some jobs are specifically exempt under the law, such as computer professionals, commissioned salespeople, outside salespeople, farmworkers, learned professionals (such as lawyers and doctors) and creative professionals (such as artists and musicians). Others fall under a general classification based on the job duties of the position. These includes employees that are appropriately classified as executive, administrative, or professional employees. These employees must earn at least $2,600 monthly and meet the legal definition of each classification. The Department of Labor, over time, has broadly expanded these classifications to cover most white collar, mid-level and above jobs. It also covers anybody who manages two or more employees. If any employee is appropriately classified as exempt then he or she is not covered by either minimum wage or overtime provisions. The salaried, exempt employee can work as many hours as necessary to complete his or her job duties with no further pay.

How this provision is violated

The exempt provisions of the law are commonly violated in two ways. First, the employee may be misclassified as exempt when the job duties do not meet any criteria in the FLSA or Texas Payday Law to justify the exempt status. In that case, the employee may be entitled to back pay for lost overtime pay and other compensation. Salaried, exempt employees must spend at least half of their time performing exempt duties. If the exempt employee is performing the same duties as non-exempt employees more than half the time then the employee is no longer exempt.

The second way the exempt provisions are commonly violated is by appropriately classifying a salaried employee as exempt but treating him or her like an hourly employee. If an employee is exempt under the three main classifications (professional, administrative, or executive) then the employee must be paid on a salary and not on an hourly basis. Although salaried employees can be generally tied to a work schedule (such as regular work days and hours of work) the employee cannot be docked pay for showing up late or taking partial day absences with the exception of full day deductions for (most) full day absences. If the employer is picking over the employee’s work hours as it would to an hourly employee then the salaried employee may not be exempt.

Work hours

flsa wage minimum wage payday lawyer attorney dallas texas fort worth overtime hourly salaried The next issue to address for both hourly pay issues and overtime pay is what hours are worked during the work week. Employers try to short change employees by not paying for time they consider work that the law considers work time. Employers also try to make employees work off the clock to avoid paying wages for all work performed. The following list includes work time that must be paid and counted towards hours worked in the work week:

  • Time spent at work performing job duties whether it is during “official” work hours or not;
  • Short breaks of twenty minutes or less;
  • Lunch breaks if the employee performs any services for the employer during the lunch break, even if the employee is just waiting for phone calls, emails, deliveries, etc.
  • Time waiting to work (in most cases), especially if the employee must remain on the work site waiting for work;
  • Preparation time before the shift begins to be ready for work at the start of the shift, such as logging into computers, obtaining tools, bringing supplies to a workstation;
  • Time the employee volunteers to work “off the clock”;
  • Time the employer has volunteered the employee to work “off the clock”
  • Certain “off duty” employer-related activities where attendance is mandatory
  • Certain travel time
  • In most cases, time spent working at home even if the employer has not approved the work.

The lunch break is a key way employers short change employees. When employees eat lunch at their desks, other employees or managers may ask for help with work or to cover the phones while they eat. This time, even if it is just waiting for phone calls, becomes work time and you must be paid for it. It must be counted towards your overtime pay. Employers also like to require employees to be ready to work at the beginning of their shift, requiring them to come in early to perform preparation tasks. This is work time whether the employer thinks so or not.

If your employer is not paying you for all the work you perform then you are definitely losing your regular rate of pay for that time and it is likely not counted towards overtime pay. You could be losing a noticeable amount of money each week through regular pay and overtime pay for that time. If your employer is short changing you ten minutes a day, five days a week, you are losing fifty minutes of regular pay plus time and a half for overtime pay. Over the course of a year that is 1.6 weeks of regular pay.

Minimum wage requirements

The FLSA and Texas Payday Law require most employees to be paid the minimum wage for all hours under forty hours. Certain classifications of workers are not entitled to the standard $7.25. Some industries have lower minimum wages established, such as tipped employees in the service industry (for more about tipped employees, see below), and some industries have no minimum wage set (such as lawyers) or the minimum is set by laws specifically covering that industry. Most employees will be covered by the federal minimum at $7.25.

Overtime pay

Under the FLSA and Texas Payday Law, non-exempt employees are entitled to 1.5 times their regular rate of pay for each hour over forty hours worked in a work week. This does not mean 1.5 times minimum wage. It is the regular rate of pay based upon the regular hourly amount paid to the employee for hours worked under forty. Hours must be calculated in the work week the work is performed. Employers cannot shift hours or promise to pay it later. Because overtime is paid at a higher rate, employers are motivated to avoid paying for this work. Here are some common ways employers illegally try to avoid paying overtime pay:

  • Refuse to pay for time worked as discussed above;
  • Refuse to pay for overtime because it was not pre-approved;
  • Shift hours from work work week to the next to avoid overtime pay;
  • Shift the work week around to avoid putting overtime on the correct week’s hourly calculation;
  • Offer comp time instead of paying overtime pay (only public employees can receive comp time instead of overtime);
  • Misclassify employees as exempt as discussed above;
  • Promise to make payments later for overtime or to pay overtime under the table;
  • Improperly calculate the regular rate of pay by leaving out certain forms of overtime-eligible compensation, such as non-discretionary bonuses.

In Texas, there are no protections for employees who refuse to work overtime and are punished for the refusal. If you work the overtime, you must be paid for it. You should never volunteer to work off the clock or accept your employer’s request that you work off the clock. If you are non-exempt (overtime pay-eligible) you should avoid situations where you are working in a way that makes it easy for your employer to deny you pay you are due. If your employer tries to make you work through lunch without pay you should go to a break area or leave the work site. Avoid working from home on projects where your hours are not documented at the employer’s place of business because this allows your employer to deny you did the work or that it must pay for it.

Paycheck deductions

In Texas, only certain deductions may be paid to your paycheck without your prior written authorization. These include deductions for taxes, certain automatic deductions for benefit plans authorized by law, alimony/spousal maintenance payments, child support, student loan payments and other court-ordered garnishments. Other forms of deductions, such as union dues, loans and, uniform costs, must be authorized in writing by the employee before a deduction can be withheld from your paycheck. If you owe your employer money and do not authorize the deduction, your employer can take other steps to recover the money owed.

Unpaid internships

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Many employers love the idea of unpaid interns, because they see it as unpaid labor. However, a person does not qualify as an unpaid intern just because they are given the title “intern”. The FLSA and Texas Payday Law look at six factors to determine whether a person is an intern or an employee. Two key factors often prove an unpaid intern is really an unpaid employee. First, the intern must be in a training environment similar to an educational environment. That may mean that the internship is in conjunction with an educational program (such as for college credit) and the person is given training in the workplace rather than just doing the work of any other employee. Second, if the “intern” is a substitute for the employer hiring paid employees, the person is an employee, not an intern. If the “intern” is performing regular work for the benefit of the employer and the employer, without the “intern”, would have to pay somebody to do the same work then the person is an employee and not an unpaid intern. In short, if the person works like any other employee, he or she is probably an employee. An improperly classified intern is entitled to minimum wage, overtime pay and potentially benefits.

Independent contractors

Independent contractors are business owners that are self-employed or operate a business with their own employees. An independent contractor can be contracted to perform certain services for an employer in the same way you can hire an independent contractor to perform services for you. (For example, you could hire a plumber to fix a leak and a restaurant could hire a plumber to fix a leak and the plumber is an independent contractor in both instances.) An independent contractor is not paid wages or benefits by the employer. No minimum wage and no overtime. The independent contractor gets paid based upon the contract between the parties. Classifying workers as independent contractors is very beneficial for employers because they do not have to pay overtime, employment taxes, or benefits. This can lead to improper classifications of employees as independent contractors. Several factors can be considered in determining whether an independent contractor classification is appropriate. The factors focus on whether the worker operates like an independent business or under the normal control of the employer like any other employee.

An employee misclassified as an independent contractor is entitled to the same wage protections and benefits as other employees. Your employer may owe you additional pay for hours worked in the form of minimum wage and/or overtime pay. You may also be entitled to benefits, such as health insurance and credit towards the employer’s retirement plan.

Tipped employees

Tipped employees must receive a reduced hourly rate from the employer with the expectation that the combination of the hourly rate from the employer plus tips will equal at least the federal minimum wage. If the federal minimum wage is not met the employer must make up the difference to comply with minimum wage and overtime requirements.

Employers often violate the FLSA and Texas Payday Law by illegally forcing tipped employees to share tips. Tip sharing or tip pooling is permitted by law as long as it meets certain requirements. Tipped employees are always free to share tips with whoever they wish. Employers may have involuntary tip pooling with certain employees. It can only include employees involved in serving the customers, such as waitstaff, bartenders, barbacks, hosts and hostesses, food runners and busboys. The employer and management cannot take part in the pool (even if managers assist in serving customers). Mandatory tipping also cannot include back of house employees, such as chefs, cooks, dishwashers and janitors. Employers cannot require tip sharing on the amount of tips that brings the employee up to minimum wage; only the amounts in excess. Tip pooling can only be in an amount that is customary and reasonable, which is normally going to be a very low percentage of tips.

Your employer violates the FLSA and Texas Payday Law if you are not paid minimum wage and overtime, if applicable, for your work. Your employer also violates these laws if the employer takes part of the tip pool for itself or to pay employees ineligible for tip pooling.

How The Kielich Law Firm can help

You work hard for your pay and you should be compensated fairly for the work you perform. If you are not being properly paid, you are losing money to take care of yourself, your family and your future. At The Kielich Law Firm I can represent your wage claims against your employer and help get you the pay you worked for. Contact my office today to discuss your wage concerns or visit my blog for more information.

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