Texas

Overtime Pay Rights

Authored By: Partnership for Legal Access

Information

Your Right to Overtime Pay

1. What is overtime pay?
2. What is an example of how overtime pay works?
3. If I work more than 8 hours in a day, am I entitled to overtime pay?
4. Are all workers covered by the overtime pay law?
5. Am I entitled to be paid overtime pay, even if I am not paid by the hour?
6. How do I know when the work week begins and ends?
7. How do I know what my regular rate of pay is?
8. If I am not paid by the hour, how to I figure out my regular rate of pay?
9. What should I do if it is hard to determine my regular rate of pay?
10. Can an employer take deductions out of my wages that have the effect of reducing my wage below the required overtime pay?
11. If meals and housing are deducted from or counted as part of my pay, are they included in my regular rate of pay?
12. What if an employer doesn't actually deduct the things listed above, but requires me to pay for them out of my own pocket - for example the cost of the tools or uniforms I use on the job?
13. How do I count my hours, to see whether I am working more than 40 hours in a week and whether my employer is paying me overtime pay?
14. Do I count the hours I spend waiting at the worksite as part of my work time?
15. Do I count meal breaks as part of my work time?
16. Do I count rest breaks as part of my work time?
17. Do I count travel time connected with the job as part of my work time?
18. Does my employer have to keep pay records?
19. What should I do if my employer is not keeping accurate pay records or is falsifying my pay records?
20. Where can I get help enforcing my right to overtime pay?
21. What wages and compensation can I get back if my employer fails to pay me overtime pay?
22. What if I have already quit the job or no longer work at the job where I was getting less than the required overtime pay? Can I still bring a complaint or a lawsuit?

Your Right to Overtime Pay

What is overtime pay?

Federal law says most workers must be paid at least time and a half their regular rate of pay for each hour they work over 40 hours in a week. Texas has no overtime law, even though most other states do.

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What is an example of how overtime pay works?

If your regular pay rate is $8.00 an hour and you worked 50 hours in a week, then you must be paid $8.00 an hour for the first 40 hours in the week, plus $12.00 an hour (that is, time and a half $8.00) for the extra 10 hours you worked that week.
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If I work more than 8 hours in a day, am I entitled to overtime pay?

No. Under the federal law, it doesn't matter how many hours you work in a day. You only consider whether or not your work hours totaled to more than 40 hours in the whole work week.
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Are all workers covered by the overtime pay law?

Almost all employees have a right to receive overtime pay, but there are some exceptions in the law. The major exceptions include:
• Most farm workers;

• Professional workers with advanced degrees; executives and high paid administrative employees

• Some lower-level supervisors who are paid at least $455.00 a week and have the power to supervise and hire and fire two or more other workers;

• Some employees in small local businesses.

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Am I entitled to be paid overtime pay, even if I am not paid by the hour?

Yes. However you get paid - by the week, twice a month, by the job, or on a piece rate - you still have to get paid enough to add up to at least the required overtime pay for each week you work more than 40 hours.
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How do I know when the work week begins and ends?

Your employer is required by law to declare when the employer's workweek starts and ends. Ask your employer, if you feel you can safely do so. If not you may get help from a law office or legal aid office.
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How do I know what my regular rate of pay is?

Your employer is required to tell you what your regular rate of pay is. Usually it appears on your check stub. Often the regular rate of pay is simple to figure out. Your regular rate of pay is whatever you make per hour during a non-overtime week.
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If I am not paid by the hour, how to I figure out my regular rate of pay?

You take the total amount of earnings (before deductions) that you are paid in a non-overtime week and divide that amount by the number of hours you worked that week. That is your regular rate of pay for that week.
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What should I do if it is hard to determine my regular rate of pay?

Sometimes it can be a little hard to figure out your regular rate of pay, where your employer has not told you or has not really been giving you overtime pay or has misstated your regular rate of pay. It can also be hard to figure, if you are not paid by the hour or by the week. Ask your employer, if you think you can safely get a correct answer from the employer. If you are not able to get a clear answer from your employer, a lawyer's office or legal aid office may be able to help you calculate your regular rate of pay.
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Can an employer take deductions out of my wages that have the effect of reducing my wage below the required overtime pay?

An employer can make deductions for some items, even if this drops you wages below the required overtime pay. But other items cannot be deducted in a week when you work overtime.

• Items that an employer can deduct from you wages, even if this cuts into your overtime pay, include:
• Payroll taxes that the employer is required by law to deduct, like FICA taxes and income withholding taxes. However, these tax deductions are legal onlyif the employer actually then pays the taxes in to the government.

• Money the employer is ordered by a court to deduct;

• Money to repay an advance on your wages or a loan that the employer has already provided you. However, you must actually have received this money and been free to spend it however you chose and you must have agreed in writing that it could be deducted later from your wages.

• Items that an employer can never deduct from your wages, in an overtime week, include:

• The cost of work tools you use in the job. This also means you can't be charged a "deposit" for such tools or for the replacement of such tools, in an overtime week.

• The cost of uniforms, or laundering uniforms, you use on the job.

• The cost of repairing broken equipment or things you may have damaged during the job;

• Cash register shortages or the bills that customers failed to pay.

• The cost of meals and housing that the employer provides you as part of the job might be deductible, even in an overtime week, but only if :

• You actually receive the meals and housing

• You have agreed in writing that these can be deducted from your wages

• The employer deducts only the actual cost to the employer (which is usually much less than the supposed market value)

• The employer has kept records to specifically document the actual cost of the meals and housing provided to you.

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If meals and housing are deducted from or counted as part of my pay, are they included in my regular rate of pay?

Yes. Even thought they are deducted from your take-home pay, they are part of your compensation and are therefore counted as part of your regular rate of pay. They should therefore increase the amount of your overtime pay in a week where you work more than 40 hours.
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What if an employer doesn't actually deduct the things listed above, but requires me to pay for them out of my own pocket - for example the cost of the tools or uniforms I use on the job?

The employer cannot make you pay for these things yourself, if they are otherwise not legally deductible. Making you pay for these things out of your own pocket is considered the same as if the employer deducted them in that work week.
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How do I count my hours, to see whether I am working more than 40 hours in a week and whether my employer is paying me overtime pay?

Normally, you get to count all the time that the employer requires you to be present at the worksite, ready to work.

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Do I count the hours I spend waiting at the worksite as part of my work time?

Yes, if the employer requires you to be there during that time. Even if you are not doing any work at the moment, but are expected to be there waiting for the employer to get started or to fix some equipment or to provide with the more work, this counts as work time. Only if you are completely free to leave and are given a specific time when you should come back, can the employer take you off the clock.

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Do I count meal breaks as part of my work time?

Normally, a meal break does not count as part of your work time, as long as you are given at least 30 minutes off for the meal break, and as long as you are completely relieved from duty and are not required to be tending to any work-related task during the break.

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Do I count rest breaks as part of my work time?

Normally, rest breaks of less than 20 minutes do count as part of your work time? It benefits the employer to allow employees to rest periodically and you should not be clocked out during this time.

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Do I count travel time connected with the job as part of my work time?

Normally you don't count your travel time between your home and your first worksite at the start of the day and you don't count your travel time between your last worksite and you home at the end of the workday. But you do count as work time travel between one worksite and another. You do count as work time travel you do as part of carrying out the employers business. And you do count travel time transporting the employer's equipment or vehicles that are needed for the job.

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Does my employer have to keep pay records?

Yes, every employer covered by the federal and state minimum wage laws is required to keep accurate pay records showing all the hours you worked in each work week, all the earnings you were paid for that work week, and all the deductions applied to your earnings for that work week? The employee is not required to keep pay records.

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What should I do if my employer is not keeping accurate pay records or is falsifying my pay records?

In this case you should try to keep your own record of the hours you work and the pay you receive. Marking this information down daily on a calendar is a good way to track your hours and pay and you write down a record in a notebook. Although the employee is not required to keep their own pay records - that is the legal responsibility of the employer - having your own record will help you prove your case later, if the employer has no records or the employer's records are not accurate.

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Where can I get help enforcing my right to overtime pay?

The U.S. Department of Labor Wage and Hour Division is the government agency that enforces the federal overtime law. Texas does not have a state overtime law. But you can also get help from a lawyer's office or legal aid office. If a lawyer takes your overtime case, she usually will not charge you a fee up front to represent you, but will instead try to make the employer pay her fee along with paying your back wages.

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What wages and compensation can I get back if my employer fails to pay me overtime pay?

Normally, you are legally entitled to get back all the unpaid overtime pay that your employer failed to pay you during the last two years. In some cases where the violation was especially bad, you can get back your unpaid overtime pay going back three years. In addition to your back wages, if you get a lawyer to help you file your own lawsuit, you can recover an additional amount equal to your back wages as damages to compensate you for not getting the money when you were supposed to get it and to punish the employer for not paying you when she should have. This is sometimes called "double damages." In addition, if you bring a lawsuit represented by a lawyer, you can ask that the defendant be ordered to pay the attorneys fees to compensate your lawyer.

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What if I have already quit the job or no longer work at the job where I was getting less than the required overtime pay? Can I still bring a complaint or a lawsuit?

Yes. In fact many employees don't feel safe trying to recover their back wages until after they have left the job. You can still recover your unpaid wages and damages. But remember you can only go back two years (sometimes three) from the time you file your complaint; so delay may cause you to lose some of the back pay you might otherwise be entitled to receive.