Overtime Wages & Non-exempt Employees

Under the federal Fair Labor Standards Act (FLSA), covered employers need to pay eligible employees—known as non-exempt workers—an overtime premium of 150 percent of their regular hourly wage for every hour they work over 40 in a week. In its current form, the FLSA regulates minimum wages, overtime, child labor standards, and recordkeeping guidelines. In Texas, overtime provisions strictly adhere to the rules established by the FLSA. Hence, Texas does not have its own overtime law—so any questions regarding enforcement or violations of overtime would be a question of federal law. A non-exempt employee is entitled to overtime pay through FLSA. On the other hand, exempt employees are not granted protections of the FLSA and are, therefore, not entitled to overtime pay. An individual is an exempt employee if he or she meets the following three tests:

1. Makes at least $23,600 per year (or $455 per week)
2. Is paid on a salary basis
3. Performs exempt job duties, often relatively high-level duties with respect to the company’s overall operations (executive, administrative, and professional)

Today, overtime is viewed less often as an economic stimulus program and more typically as a worker right. However, many employers try to avoid paying the overtime premium—time-and-a-half for every overtime hour worked. Most overtime violations fall into one of the following three categories:

1. Misclassifying employees as exempt – Some examples include classifying employees as exempt “managers” when their job duties are similar as the employees who supposedly report to them, paying employees based on how many hours they work each week instead of paying them a true “salary” that doesn’t fluctuate based on hours worked or production, or docking employee pay based on hours, performance, productivity, or other inadequate reasons.
2. Failing to count hours worked – Requiring employees to work “off the clock,” through unpaid rests or meal breaks, perform extra work at home that is not compensated, not counting time spent on required training, or not counting time employees spend traveling for work.
3. Miscalculating the hourly rate – Not counting all wages, commissions, and shift differentials in calculating the employee’s hourly rate, and not counting al performance-based bonuses and prizes in the employee’s hourly rate.

If you believe you are not being properly paid overtime, it is best to begin by speaking with your employer. Explain why you believe you are entitled to overtime, show documentation, and provide the employer with a copy. If convincing your employer that you are owed overtime doesn’t succeed, you have a few options. First, you can contact the Texas labor department to learn about the process for filing a complaint regarding unpaid wages. Another option is going straight to the courtroom. Whether you file a wage claim or take legal action, it is wise to seek legal guidance from an experienced attorney. At Waltman & Grisham Attorneys at Law, our Bryan employment law attorneys will ensure that you have a viable claim and determine your chances of success. For more information, contact us and request a free consultation today.