What Are Common Overtime Violations in Texas?
The Fair Labor Standards Act (FLSA) sets guidelines for overtime pay, including the number of hours per week that an employee can work before being guaranteed overtime pay. Many employers try to skirt overtime rules and other wage and hour regulations in order to avoid paying employees what they are owed. It is important for Texas workers to understand the common ways employers use to try to get around paying workers what they are due under the overtime regulations.
Deliberately Miscalculating or Underreporting Work
Federal law requires employers to pay workers for all hours they work and to count all hours an employee works every week. For each workweek, employers must pay employees overtime for all time worked above and beyond 40 hours of regular work. Employers cannot skirt the overtime law by labeling certain work as “off-the-clock” or by failing to count those hours for other reasons. If an employer knows that an employee has worked more than 40 hours during the workweek, the employer must pay that worker an overtime rate of 1.5 times the worker’s base hourly rate.
Misclassifying Employees as Exempt
Overtime rules automatically apply to employees who make less than a certain threshold. Workers who make less than $35,568 a year, or $684 a week, are guaranteed overtime pay, even if they are classified as a manager or a professional. Employers often try to get around overtime pay by misclassifying employees as managers or professional white-collar workers. If an employee earns less than the above threshold amounts, and no other special exception applies, then they are entitled to overtime pay.
An employee earning above the threshold salary amount may also still be entitled to overtime pay. Two common circumstances in which employees earning more than $35,568 a year, or $684 a week, are entitled to overtime are (1) if the employee is not actually guaranteed set salary payments each week and instead their pay fluctuates according to the number of hours they work and (2) even though the employee is called a manager or salaried employee, the employee is in fact really performing the same non-managerial and non-exempt job duties as hourly employees (such as stocking shelves, working at the cash register, etc.) all or most of the time.
Requiring Additional Work After Clocking Out
Many employers try to avoid paying overtime wages by having employees clock out after working exactly eight hours, even when there is additional work to do. Employees, for example, may be required to clean up their workstations after clocking out, or attend mandatory meetings or conference calls, or do other extra end-of-the-day work. All workplace duties count as work, and requiring employees to stick around performing work tasks after clocking out is a violation of not only the overtime laws but the minimum wage laws since the employer isn’t paying the employee at all at that point for his or her labor.
Misclassifying Employees as Independent Contractors
Employees are guaranteed overtime, workers’ compensation protection, and other rights. Independent contractors are not. But just because you are called an independent contractor or getting a 1099 instead of a W-2, doesn’t mean you are actually an independent contractor under federal law. Many employers try to classify workers who are clearly employees as independent contractors in order to get around overtime protection and worker rights. If a worker meets the federal or state definition of an employee, they are guaranteed employee protection, regardless of the title the employer tries to give them.
One common indicator that an independent contractor is actually an employee is that the employer still exerts a lot of control over how the supposed “independent” contractor performs their job, such as setting mandatory work hours, mandating the wearing of uniforms or following dress codes, requiring the contractor to physically work in the employer’s office, or enforcing other workplace policies such as lunch break, attendance rules, no moonlighting, or other rules against the contractor.
Intimidating Employees Into Underreporting Hours
Some employers use more heavy-handed tactics to evade the Federal wage & hour law. They may flat-out demand that employees underreport their work in order to meet budgetary constraints or have supervisors complete time cards for the employee that don’t reflect the employees’ real work hours. They might claim that contractors or clients refuse to pay beyond a certain number of hours, claim that a grant or down payment only covers so many hours, or that they don’t have enough cash flow to pay anything but regular pay. These excuses sometimes are outright lies. They may threaten to terminate employees who report all of their hours, or threaten them with discipline, deportation or other penalties.
The Federal law does not allow employers to retaliate against employees for exercising their right to get paid overtime for all hours worked. Employees should never be required to underreport their hours for any reason. Hourly-wage workers and even so-called “salaried” workers or “independent contractors” should get paid for all hours they actually work if they are performing the type of job tasks, like construction, janitorial, landscaping, cashier, shelf-stocking, warehouse, assembly line, cooking, waitering, or other service or production-oriented labor that is non-exempt and subject to overtime.
If your overtime rights have been violated in a Texas workplace, you can rely on the experienced and effective wage & hour attorneys at Tremain Artaza PLLC for advice and representation. Our attorneys are committed to justice and protecting the families of workers across Texas. Submit your case for our review for free online or schedule a low-cost telephone consultation with us.