In order to determine whether or not you are owed overtime pay, you first must determine whether you are classified as “exempt” or “nonexempt.” However, you can’t always rely on your employer to tell you which classification applies to you. Employers often have motives to classify you as exempt in order to deprive you of overtime wages.
One of the most significant differences between exempt and nonexempt employees is the difference in pay for overtime work. If you are exempt, this means you are exempt from being paid at an overtime rate.
Keep in mind that there are complex regulations that govern whether an employee could be exempt from receiving overtime pay. It is best to speak to an attorney that specializes in employment law to help you determine whether or not you are owed overtime or were misclassified as exempt.
Am I exempt from receiving overtime in Texas?
Usually an employee’s classification status depends on:
- How much they are paid
- The scheme in which they are paid (e.g. salary, hourly + tips, commission)
- What their job responsibilities and duties are
In order to be exempt from receiving overtime, the employee must satisfy three requirements:
- They must make at least $684 per week (as of 1/1/2020)
- Paid on a salaried basis
- Perform exempt job duties
- “Exempt job duties” usually means intellectual work that requires specialized education, and involves “exercise of discretion and judgement.”
What job duties are exempt?
There are three categories of exemptions:
- This could apply to the president of a company, a head of a major division, general managers or department heads with hiring and firing duties.
- This might include personnel directors, department heads, general managers, payroll directors, chief financial officers, comptrollers, head buyers, head dispatchers.
- Creative professionals, registered nurses, pharmacists, dentists, teachers, artists, writers, physicians, attorneys, CPAs, among others.
In order to be exempt, your primary duty must fit into one of the above categories. This means that you spend more than 50% of your work time doing this duty. In addition, your weekly compensation must be at least $684.
Remember that your job title cannot exempt you from receiving overtime. Rather, the exemption is based on educational qualifications, job duties, and salary amount.
What is “comp time?”
Comp time, also known as compensatory time, is when employees compensate their workers for overtime hours with time off, instead of the overtime pay they deserve. This is a widespread practice, yet it is illegal in many cases. Usually it is illegal for private-sector businesses (including private-sector non-for-profit agencies) to do this. The Fair Labor Standards Act provides details of these rules.
If you work 48 hours in a week and your boss tells you to take a day off next week, you might be able to sue him or her. Even if you prefer to have comp time rather than receive overtime pay, the FLSA still requires you to be paid overtime. This is even if the overtime is unauthorized. Employers must pay you for every second that you worked, even if they did not explicitly approve it.
If I work more than 40 hours before the week has ended, but my employer still requires me to come in, is that legal?
In most cases, yes. Your employer is also legally permitted to force you to use a vacation day if you don’t work. This is if you’ve already worked 40 hours in the week. According to the U.S. department of labor, your employer may provide you with vacation time and later require you to take it on a specific day.
What damages can I recover for unpaid overtime?
If your employer misclassified you and you are, in fact, eligible for overtime pay, you may be entitled to:
- Back pay for time worked but not paid
- Liquidated damages
- Statutory penalties
- Your legal fees
In addition, the Department of Labor might impose civil penalties of up to $1,100 per violation. Employers that repeatedly violate these rules can expect even higher penalties and in some cases, criminal penalties.
What is an exempt creative professional?
If your primary duty is work that requires invention, originality, imagination or talent in a recognized field of artistic or creative endeavor, you are a creative professional.
Do independent contractors get overtime in Texas?
Generally speaking, no. The Fair Labor Standards Act (FLSA) is a federal law that governs overtime. The legislators wrote this act with the intent to protect employees. Technically, independent contractors are not employees. But just because your employer says that you are an independent contractor, does not mean that you necessarily are.
If your employer has misclassified you as an independent contractor but you are truly an employee, you will be owed overtime. This is as long as you do not fall within one of the narrow exemptions of the FLSA.
Can I refuse to work overtime without getting fired?
In Texas, there are no protections for employees who refuse to work overtime and face punishment for their refusal. Still, if you work the overtime, you must receive pay for it. Your employer is responsible for knowing how many hours you are working.
If your employer refuses to pay you overtime that you are owed, they are very foolish. It will be a great deal more expensive for them if you take them to court.
Can I be disciplined for working overtime?
Unfortunately, yes. While your employer still must pay you for any time that you worked, if they claim that your overtime was unauthorized, they can discipline or even terminate you. This does not mean you have absolutely no recourse. Speak to an employment law attorney to determine whether or not your rights have been violated.
Unpaid overtime attorney in Texas
The Leichter Law Firm caters to professionals facing legal challenges in their professional careers. Attorney David Langenfeld is a Board Certified Specialist in Employment law. Because of this, he is an expert at spotting the common tricks that Texas employers attempt in order to cheat their employees of well-deserved overtime wages. If you are unsure whether your employer has misclassified you, or if you think your employer has been cheating you of the overtime wages you deserve, contact us today online or by calling 512.495.9995.