Texas Overtime Eligibility

Overtime in Texas applies to each employee who is subject to overtime provisions of the Fair Labor Standards Act of 1938 (FLSA), the federal law that establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in federal, state, and local governments. Overtime pay at a rate not less than one and one-half times the regular rate of pay is required after 40 hours of work in a workweek for non-exempt employees pursuant to the FLSA and the Texas Minimum Wage Act (TMWA). The only employees that should not receive overtime pay are those that may be classified as “exempt” as strictly defined by the Department of Labor (DOL) to include certain executive, administrative, professional, and commissioned positions.

Texas Weekend and Holiday Overtime Pay Requirements

Contrary to popular belief, the FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime hours are worked on such days. Extra pay for working weekends or nights is a matter of agreement between the employer and the employee, but is not a requirement under the FLSA. Another fact that is often misunderstood is that the FLSA applies on a workweek basis, not on a biweekly or semi-monthly period according to an employer’s pay period frequency. An employee’s workweek is a fixed and regularly recurring period of seven consecutive days. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.

Texas Minimum Wage Overtime Pay Requirements

In addition to overtime pay, covered non-exempt workers are entitled to a minimum wage of not less than $7.25 per hour, effective from July 24, 2009. Many states also have minimum wage laws, including Texas through the TMWA. In cases where an employee is subject to both state and federal minimum wage laws, the employee is entitled to the higher minimum wage amount. Texas minimum wage law however instead adopts the federal minimum wage rate, currently residing at $7.25 per hour. Like overtime pay, exempt employees are also not subject to minimum wage requirements. Because exemptions are generally narrowly defined under the FLSA, an employer should carefully check the exact terms and conditions for each possible exempt employee at issue.

Along with establishing a minimum wage for non-exempt employees in Texas, the TMWA also requires covered employers to provide each employee with a written earnings statement containing certain information about the employee’s pay. Within the TMWA, the Texas Workforce Commission (TWC) is designated as the agency responsible for disseminating information about state minimum wage requirements. Civil remedies are also provided for violations of the Act. Lastly, certain provisions within the TMWA have special rules in place for agricultural piece rate workers and a variety of employers that are excluded from the Act’s coverage altogether. All other employees of certain enterprises having workers engaged in interstate commerce, producing goods for interstate commerce, or handling, selling, or otherwise working on goods or materials that have been moved in or produced for such commerce by any person are covered by the FLSA.
However, not every type of employee that is eligible for minimum wage is able to receive overtime pay under the FLSA. Employees that are exempt from the overtime pay provisions only may include employees of railroads and air carriers, taxi drivers, movie theater workers, news editors, farmworkers, and certain commissioned employees of retail or service establishments, among many other positions. Also of note, only nursing mothers that are subject to the FLSA’s overtime requirements are entitled to breaks to express milk under Section 7 of the FLSA. Unlike some other states, Texas does not go further to obligate pumping breaks for exempt employees under state law.

Employer FLSA Records Requirement

For any employee subject to the FLSA’s minimum wage provisions or both the minimum wage and overtime pay provisions, the following records must be kept by the employer:

1. Personal information, including the employee’s name, home address, occupation, sex, and birth date if they are under 19 years of age;
2. Hour and day when the workweek begins;
3. Total hours worked each workday and each workweek;
4. Total daily or weekly straight-time earnings;
5. Regular hourly pay rate for any week when overtime is worked;
6. Total overtime pay for the workweek;
7. Deductions from or additions to wages;
8. Total wages paid each pay period; and
9. The date of payment and pay period covered.

Records required for exempt employees differ from those for non-exempt workers. The FLSA allows the DOL or an employee to recover back wages and an equal amount in liquidated damages where minimum wage and overtime violations exist. Generally, a two-year statute of limitations applies to the recovery of back wages and liquidated damages. A three-year statute of limitations applies in cases involving willful violations by the employer. Remedies may be recovered through different administrative procedures, litigation procedures, and/or criminal prosecution. Beyond the FLSA, federal overtime pay rules also appear within the Walsh-Healey Public Contracts Act and the Contract Work Hours and Safety Standards Act, which covers the payment of minimum wage rates/overtime on contracts to provide goods to the federal government and the setting of overtime standards for service and construction contracts, respectively.

Texas Overtime Pay Requirements

In summation, Texas overtime law requires employers to pay their non-exempt employees at least one and one-half times the regular rate of pay for any hours worked in excess of 40 within a workweek. Another way to think about this that all Texas employees must receive overtime pay when applicable, unless they are paid a salary of at least $684 per workweek/$35,568 annually and perform duties satisfying one of the FLSA’s recognized bona fide overtime exemptions under Section 13(a)(1), thereby otherwise classifying those exceptional workers as “exempt” employees. If an employee merely works under the title of executive for example, but does not perform the FLSA’s specified duties, then they would not be exempt from overtime pay. Contrary to prevailing myths regarding overtime, such pay is still owed to non-exempt employees even when they are paid on a salary basis, labeled by their employer as an “independent contractor,” or when they work unauthorized hours that were not pre-approved by their employer.

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In the United States, a variety of federal laws protect workers’ rights. In the state of Texas, we have additional laws that protect workers under the Texas Labor Code. When employers do not obey these laws and regulations, employees have the right to take action without employer retaliation.

Ross • Scalise Employment Lawyers is committed to helping workers by upholding the law and holding companies accountable for their actions. If your employer has discriminated against you, harassed you, retaliated against you for complaining about illegal actions, stolen your wages, or otherwise wronged you, take a stand. You can start by talking to a seasoned Austin employment lawyer at our firm today. Contact Us online or Call Us at 512.643.6388 to request an appointment.