Do you work 40+ hours per week without receiving overtime pay?
Are you paid a salary for a job that should be paid overtime?
Do you work “off the clock” without receiving overtime pay?
Does your employer refuse to pay “unapproved” overtime?
Are you given “comp time” rather than an overtime pay?
If you answered yes to any of these questions, you may have a claim for unpaid overtime and could be entitled to thousands of dollars in lost wages, plus additional damages and attorney’s fees.
Unpaid overtime claims
In Texas, federal law governs unpaid overtime. The Fair Labor Standards Act, or FLSA, requires that employers pay employees overtime compensation or “time and a half” for every hour worked over 40 hours in a workweek, unless the employee is “exempt.” The FLSA also provides that employees can recover liquidated damages (also called “double damages”) and attorney’s fees in an unpaid overtime lawsuit.
Common unpaid overtime violations
Employers often intentionally or mistakenly violate the FLSA’s overtime rules, costing their employees thousands of dollars in unpaid overtime. Below are some of the common violations of the FLSA’s unpaid overtime provisions:
Refusing to pay salaried employees overtime
Many employers believe that only employees being paid hourly are entitled to overtime pay. Employees are generally still entitled to overtime pay, even if they are paid a salary, unless they fall within one of the specific exemptions under the FLSA. These exemptions include, among others, the “executive” exemption, “administrative” exemption, and “professional” exemption. Each salaried employee should be evaluated to see whether an exemption applies to them. If no exemption applies, the employee must be paid overtime wages for all hours worked over 40 (40) in a workweek.
Refusing to include “off the clock” hours as overtime
Employees are often required to work “off-the-clock” time, such as working through lunch, working before or after regular shifts, taking care of work-related equipment, or job-related “volunteer” work. Some employers permit an employee to take home work, or even require them to work from home, but do not include the employee’s time in calculating their wages and overtime. Under the FLSA, all hours worked in excess of 40 hours per week, regardless of where they are worked, must be paid at the overtime rate.
Refusing to pay “unapproved” overtime
Often employers avoid paying overtime by claiming that the overtime was not approved in advance. However, under the FLSA, employees must be paid for work “suffered or permitted” by the employer even if the employer does not specifically authorize the work. If the employer knows or has reason to believe that the employee is continuing to work more than 40 hours in a week, the time is considered hours worked, and the employee must be paid for the overtime.
Claiming that employees can waive overtime pay
Some employers convince their employees that they must “waive” their right to overtime pay. This is not permitted under the FLSA. An employer that forces its employees to sign a time sheet with incorrect hours in order to avoid overtime pay could be willfully violating the FLSA, resulting in additional damages being assessed in an unpaid overtime lawsuit.
Giving employees “comp time” instead of overtime pay
Employers try to give their employees compensatory time off (comp time) instead of paying them for overtime. For instance, if an employee works 50 hours one week, the employer may claim that the employee has earned ten hours of comp time that can be used later. This practice typically violates the FLSA. The FLSA’s overtime pay requirements cannot be met through the use of comp time except under special circumstances applicable only to state and federal government employees.
Avoiding overtime pay by merging workweeks
Employers sometimes attempt to avoid overtime by averaging or merging an employee’s hours over two or more workweeks in order to avoid having an employee work over 40 hours in either workweek. For example, if an employee works 30 hours in one workweek, and 50 hours in the next, the employer may not average the hours into two 40 hour workweeks. Under the FLSA, the employer must pay 10 hours of overtime for the 50 hour workweek.
Contact me for a free evaluation of your overtime claim
Josh Borsellino understands Texas and federal fair wage laws, including those for unpaid overtime. If you seek a Texas overtime lawyer, a fair wage lawyer in Texas, or if you simply have questions regarding your right to unpaid overtime, call Josh Borsellino at 817.908.9861 or fill out the contact form for a free evaluation.