State and federal law guarantee overtime pay to many Texas workers.
When must an employer pay overtime?
Most wage employees should get time-and-a-half pay if they work more than 40 hours in a week.
Example: An employee's normal rate of pay is $10.00 per hour. They work 50 hours in a work week. They get paid $10.00 per hour for the first 40 hours. They then get paid $15.00 per hour for the additional 10 hours.
No overtime pay: Teachers, outside sales employees, lawyers, and physicians are not entitled to overtime pay. Other salaried executives, professionals, and administrators who make more than $683 per week do not get overtime pay.
Wage computer employees who make more than $27.62 per hour also do not get overtime pay. "Computer employees" includes computer systems analysts, computer programmers, software engineers, and other similar employees.
29 C.F.R. § 541 defines employees who are not entitled to overtime pay.
How many hours per day or per week can an employee work?
There is no limit on how many hours a person 16 or older may work in Texas.
Texas law limits work hours for children aged 14 and 15 as follows:
- Cannot work more than 8 hours in one day
- Cannot work more than 48 hours in one week
- Cannot go to work before 5 a.m.
- Cannot work after 10 p.m. on a day that is followed by a school day, including summer school sessions when applicable
- Cannot work past midnight on a day that is not followed by a school day
Federal law adds additional restrictions. Federal law says that children aged 14 and 15:
- Cannot work during school hours
- Cannot work more than 8 hours in a day when school is out of session
- Cannot work more than 40 hours a week when school is not in session
- Cannot work more than 3 hours in a day when school is in session
- Cannot work more than 18 hours a week when school is in session
- Can work only between 7 a.m. and 7 p.m. from the after Labor Day through May 31
- Can only work between 7 a.m. and 9 p.m. from June 1 through Labor Day
When federal and state law conflict, federal law applies. For example, Texas law says 14 and 15-year-old children may start work no earlier than 5:00 a.m., where federal law says 7:00 a.m. This means children are not allowed to start work before 7:00 a.m. at businesses where federal law applies. The federal rules apply to most but not all businesses.
Exceptions for Child Labor
There are exceptions to how long and when a child may work:
- Children 11 years and older may work a paper route.
- Parents who own a business may employ their children for any number of hours, so long as they supervise the children directly and the children do not perform hazardous tasks.
- Children can take part in a school-based work-study program.
- In some circumstances, children can work in agriculture during hours when they are not legally required to be in school. See Agricultural Workers, Youth Employment, and the Fair Labor Standards Act (FLSA).
- Children can work in a rehab program supervised by a county judge.
- Children under under 14 can work as performers, with TWC permission.
- Children aged 14 and 15 can apply for a TWC hardship exemption if they must work to support themselves or immediate family.
See the Texas Workforce Commission for more information on child labor rules.
Do part-time employees get overtime pay?
Both full and part-time employees are entitled to overtime pay.
The employer decides how many hours per week qualifies an employee as full time. This is to allow part-time employees to occasionally work more hours without automatically becoming full time. If a part-time employee works more than 40 hours in a week, they can get overtime pay.
That said, permanent employees who regularly work 30 or more hours a week may take part in the employer's health care plan. Also, employees who work more than 1,000 hours in a 12-month period may take part in the employer's retirement plan.
When can an employee’s scheduled hours of work be changed?
Except for child labor, there are no rules about employee schedules. Absent an employment agreement, an employer may change work hours without notice or consent.
Is extra pay required for weekend, night, or holiday work?
There are no rules that require extra pay for night, weekend, or holiday work. You may, however, have an agreement with your employer that gives you such extra pay.
Does travel time count toward work hours?
It depends. Normal travel to and from work does not count toward work hours.
Travel that is part of work, such as travel between job sites, counts toward work hours.
Travel away from home, including overnight travel, counts toward work hours when it takes place during the employee's normal work time. If the employee travels on a weekend or other day they would normally be off work, the travel still counts toward work hours during the hours that correspond to the employee's normal work time.
It is less clear if travel time outside of the employee's normal work time counts toward work hours.
Do breaks count toward work hours?
Short breaks of 20 minutes or less count toward work hours.
Meal breaks do not have to count toward work hours so long as the employee has no work obligations during the break. If the employee has any duties during the meal break, the break counts toward work hours.
If an employee is allowed to sleep while on duty for less than 24 hours, sleep counts toward work hours. If an employee is on duty for 24 or more hours, the employee and employer may agree to exclude up to eight hours of sleep time from work hours. To exclude work hours, the employee must have a proper place to sleep uninterrupted. Also, the sleep break must be at least five hours or it counts toward work hours.
Does being on call count toward work hours?
Generally, being on call does not count toward work hours unless you are physically at the work site. This is true even if you get paid for on-call time.
Does training time count toward work hours?
Yes, all job-related training counts toward work hours.
How do I get the overtime pay I am owed?
Talk to your employer.
You may be able to resolve the issue by talking to your supervisor or human resources department.
File a complaint.
If you cannot or choose not to resolve the issue with your employer, you may file a wage claim with the Texas Workforce Commission. You only have 180 days after your payment is due to file a wage claim with TWC. Government and unionized employees cannot file wage claim with the TWC.
You may also file a federal complaint with the Department of Labor. You have two years to file such a complaint (three years if the employer willfully underpaid you). Unionized employees generally cannot file a federal wage claim.
Sue in court.
You may also bring a lawsuit to get unpaid wages. The statute of limitations to sue for unpaid wages is two years. Note that some government employers may be immune to lawsuits. Union and other employment agreements may also bar lawsuits.
Arbitration or Other Contractual Remedy
Some employment agreements may require arbitration in place of a wage claim or a lawsuit. If you have a union agreement or other employment contract, talk to your union officials or an attorney.
If I work more than 40 hours one week and fewer than 40 hours the next week, can my employer average out my hours to not pay overtime?
No. If you work more than 40 hours in a week, you get overtime for that week. It does not matter how many hours you work during a different week. Your hours do not average out for purposes of overtime, even for weeks in the same pay period.
What is a work week?
A work week can be any seven-day period defined by the employer. It does not have to correspond to a calendar week.