In a recent report, the federal government declared that it recovered more than $120.5 million in overtime pay violations and assessed nearly $2.9 million in civil money damages. These figures don't include the millions of dollars in unpaid overtime recovered by law firms. It's surprising then that Texas employers continue to intentionally and unintentionally violate federal and Texas overtime law.
Federal Overtime Law and Texas Overtime Law
The Fair Labor Standards Act--the federal law governing Texas overtime pay--splits workers into two groups: employees who are entitled to overtime pay called "non-exempt" employees and employees not eligible for overtime compensation called "exempt" employees.
Non-exempt employees include employees who are paid hourly and paid on a salary basis. They are entitled to overtime compensation for all hours worked over 40 in any seven-day workweek at 1.5 times an employee's regular pay rate. For example, if a non-exempt employee earns $10.00 per hour, the employee should receive $15.00 per hour for every hour worked over 40 hours in any workweek.
Are You Entitled to Overtime Pay: Exempt v. Non-Exempt
Whether an employee is entitled to overtime pay depends on two main factors:
- Is the employee paid on a salary basis; and
- Do the primary job duties the employee performs fall within one or more of the overtime exemptions (e.g. administrative, professional, executive, outside sales, computer-related professional, etc.).
Under this test, almost all hourly employees and many salaried employees are entitled to overtime pay, including unpaid overtime wages, liquidated damages (double damages), attorneys' fees and costs if they have been denied overtime pay in the past two or three years.
The "New" Overtime Law
In 2004, the U.S. Department of Labor issued updated overtime rules expanding the overtime protections enjoyed by hourly and salaried employees. Under these new overtime regulations, employees who receive less than $23,660 per year automatically are eligible for overtime pay. On the other hand, employees who earn $100,000 or more and regularly perform exempt duties no longer are eligible for overtime pay. The new overtime law also clarified the FLSA's overtime requirements for the executive and administrative exemptions.
What's Inside Your Employer's "Bag of Tricks"
Employers understand that overtime law is complex and is difficult for employees to understand without assistance. Employers often utilize similar tricks and ploys to deny employees Texas overtime pay. Employees who are able to recognize these employer practices to deny overtime pay are better equipped to protect their overtime rights. In addition to an employer flatly refusing to answer employees' questions about overtime pay, these tactics include all of those found on our Common Overtime Violations page.
In addition, your employer may be denying you overtime pay if you are only receiving overtime pay when you work over 80 hours in a two week period. This is because overtime pay is calculated based on a seven-day workweek. Therefore, even if you are paid every other week or twice per month, your eligibility for overtime pay is based on each individual seven-day workweek, not the pay period. You only need to work over 40 hours during one of the workweeks to qualify for overtime pay.
Act Fast or Lose Overtime Pay You Already Have Earned
Texas overtime law normally permits employees to recover unpaid overtime for work performed beginning two years before a lawsuit is filed (and continuing "forward" until a case is resolved). This limitations period increases to three years before a lawsuit is filed if your employer knew that its pay practices violated the FLSA. It is important for employees to understand that the limitations period on overtime claims continues to run until a lawsuit is filed. This means that a complaint to your supervisor, the company, or the Department of Labor (Labor Board) generally will not “stop the clock.” For this reason, employees should obtain all necessary facts to understand their overtime pay rights and file suit as soon as they learn that their employer violated overtime law.
Contact a Dallas Overtime Lawyer
Dallas employment lawyer Barry Hersh dedicates a significant part of his practice to resolving Texas wage and compensation disputes with a special emphasis on recovering Texas overtime pay for employees and individuals misclassified as independent contractors. To submit your claim for a free evaluation, contact us here.