Overtime violations involve some of the most fundamental of employee rights. An employee is entitled to be paid at least minimum wage for all hours worked, and time and one-half the regular hourly rate for all hours over 40 in one week.
Employment law is complex. Employers know this and assume that employees won’t understand overtime laws without assistance. Many have devised methods of going around the complex employment laws in Texas. At Leichter Law Firm, we see many of the same patterns in overtime violations. Employers keep up these ploys and tricks to deny employees the overtime they deserve.
Employees who learn about their rights are better equipped to fight against unfair employers. If you believe that your employer has violated your rights as an employee, contact a Texas employment lawyer as soon as possible.
How do employers commit overtime violations in Texas?
Usually employees become aware of the problem when they ask their boss a question about overtime pay and receive no answers. Employers often use the following tactics to deny their employees’ hard earned overtime pay:
- Job reclassification
- By “stealing time” from their employees.
- Claiming the employee is an independent contractor and not entitled to overtime.
- Using the “salary” excuse.
- Claiming their employee meets the commission exemption.
- The “straight time” excuse.
- Using the “unauthorized overtime” excuse.
Our Texas independent contractor overtime pay lawyer can help answer questions
How does the Job “reclassification” tactic work?
If your employer has reclassified your pay from salary to hourly, it’s possible they were breaking the law.
Employers must pay an hourly worker the minimum wage and overtime. This is if they work over forty hours per week. Employers might be able to not pay their salaried employees overtime if the position meets certain qualifications. The two types of positions are “exempt” and “non exempt.”
Employees classified as “exempt” are not entitled to overtime. “Non-exempt” employees are entitled to receive overtime. Employers sometimes reclassify certain job positions. This is in order to switch them from non-exempt to exempt or vice versa.
Did you work overtime but did not receive overtime pay? Did your employer recently reclassify your position without changing your work duties? You might be a victim of the “job reclassification” tactic. In this case, your employer probably violated your overtime rights from the state. He or she may have only reclassified your position after learning of the violation. If your duties did not change, your reclassification might prove the company violated overtime law. By reclassifying your position without paying you past due overtime wages, they might have made a “willful violation.”
What does it mean to “steal time” from an employee?
This is another very blatant violation of employment laws. Sometimes employers refuse to pay employees for all the hours they worked. According to federal and state labor laws, employees must be paid for most work performed even before clocking in. They must also be paid while putting on protective wear or safety equipment, travelling between work locations after the start or end of a work day, and during lunch breaks. This includes “on-call” time as well as attending mandatory training, retreats, and work meetings.
How does the “independent contractor” tactic work?
Employers sometimes label their workers as one of the following to avoid paying overtime:
- Independent contractors
- Temporary workers
- Contract laborers
- Temp-to-perm
They do this because according to federal law, only “employees” may receive overtime pay. However, often these workers are actually employees and not independent contractors.
An employee is not an independent contractor if his or her employer controls when, where and how someone works. Does your employer maintain these rights over you but calls you an independent contractor? They might be using the independent contractor tactic.
What is the “salaried employee exemption” tactic?
Salaried employees may be exempt from overtime if they make a certain amount and if they perform specific duties that are not recognized as eligible for overtime pay.
Employers that are paid a salary to employees sometimes tell their employees that they are not entitled to overtime pay. The justification is because they are salaried. Just because you receive a salary does not mean you are “exempt.”
In 2020, federal laws changed on salaried employee exemptions. Before 2020, the “standard salary level” was $455 per week to classify someone as an exempt salaried employee. Now, the threshold is $684 per week. All employees must receive overtime pay unless they meet the minimum weekly salary threshold and perform duties satisfying one of the recognized overtime exemptions.
If your employer is denying you overtime because he or she claims you are salaried but you don’t meet the requirements, you might be entitled to overtime pay.
What is the “commissioned employee misclassification?”
Sometimes employers tell their workers that they are not entitled to overtime pay because their classification is “commission employees.” Employees who make a sale or accomplish another predetermined goal receive compensation with commissions.
Employers must pay overtime wages to commission employees unless they qualify for exemptions. Commission employees are only exempt from overtime pay if they meet all three of the following criteria:
- Commissions comprise more than half the employee’s total earnings.
- The employee works in a service or retail establishment.
- The employee’s regular pay rate is more than 1.5 times the minimum wage per hour in a workweek in which the employee works overtime.
Many employees that perform sales, recruiting and business development work whose jobs do not regularly require them to travel are usually entitled to overtime pay.
What is the “straight time only” tactic?
“Straight-time pay” is the total amount of compensation you earn in a pay period. You calculate it based on your hourly rate of pay. To figure out your straight-time pay, you multiply your hourly rate by the amount of hours you worked.
However, your “straight-time pay” should only count for your regular hours, usually 40 per week. If you are working more than your contracted amount of time, you should be paid at an overtime rate. In most cases, employers must pay at least 1.5 times an employee’s regular rate if they worked over 40 hours a week. There are almost no exemptions for hourly-paid employees. If you make $20 per hour, you should receive $30 for each overtime hour worked. Are you an hourly employee? You should be receiving at least 1.5 times your regular pay rate when you work overtime hours. If not, it’s possible your employer is breaking federal and Texas overtime laws. Collect your unpaid overtime by fighting back.
Why do companies use the “unauthorized overtime” tactic?
This is probably the most obvious violation of overtime laws. Has your employer ever refused to pay you overtime because he or she did not approve it? Did they ever delete hours from your timesheet? If so, your employer is using the “unauthorized overtime” tactic.
All employers must pay their employees for hours beyond the 40 hour standard. This is even if the employer knew or should have known the employee worked overtime. Employees should receive overtime pay even if their employer has a policy prohibiting overtime work without prior approval and the employee did not receive authorization. This is according to both Texas and Federal laws.
Overtime violations attorney in Texas
The Leichter Law Firm offers aggressive representation for workers. Particularly those whose employers cheated them of their hard-earned overtime pay. Do you suspect your employer has one of these tactics to cheat you of what is rightfully yours? Speak to one of our seasoned overtime violations attorneys. Employment attorney David Langenfeld has been fighting against unfair employers and overtime violations for most of his distinguished career. We know the tricks and schemes many employers in Texas attempt and can help you fight back against them. Fill out our online contact form, or give us a call at 512.495.9995.
