Texas Unpaid Overtime Lawyers

Does Texas have an overtime law?

Yes. Texas employees, like employees in the rest of the United States, may be covered by the federal Fair Labor Standards Act (FLSA), which entitles many employees to overtime pay. The FLSA generally applies to almost every modern workplace. If you have ever heard the terms “exempt” or “non-exempt,” those are references to whether you are or are not entitled to overtime under the strict requirements of the FLSA.

The general rule is simple: All workers are entitled to overtime (time and a half your regular rate of pay, including variable compensation like commissions) for all hours worked over 40 in any workweek. The same rule applies for minimum wage ($7.25 for most, $2.13 for tipped employees) – the FLSA requires employers to pay almost all employees minimum wage for all time worked.

Overtime pay is commonly known as “time and a half” because it’s one and a half times the employee’s normal hourly pay rate. They receive this increased rate for each hour worked over the 40-hour mark in a seven-day period. For the first 40 hours worked, they receive their standard hourly pay.

However, many Texas workers are exempt from the overtime requirements of the FLSA. The exemptions are complicated and technical, but to simplify it, if you are a salaried executive, administrative employee with independent discretion and control over decisions, or practicing professional with an advanced degree (like a doctor, lawyer, or professor), you are probably not entitled to overtime.

For sales executives and account executives, if you primarily do outside sales, or handle inside sales but always make more in commission than base, you are probably not entitled to overtime. For drivers, the analysis is extremely complicated, but generally if you drive or work on trucks weighing more than 10,000 lbs., you are not entitled to overtime – but if you drive or work on vehicles that weigh less than 10,000 lbs. in any week, you are entitled to overtime for that week. Live-in housekeepers and nannies are not entitled to overtime, but live-out nannies are entitled to overtime.

Are salaried employees entitled to overtime in Texas?

They often are. If you receive a salary and your employer does not pay you overtime, you still may be entitled to overtime. The only question is whether or not you are exempt from the Fair Labor Standards Act.

How much is overtime pay in Texas?

In Texas, as in much of the country, overtime pay is one and a half times the employee’s usual hourly rate. For example, a non-exempt employee who makes $10/hour would receive $15/hour for each hour worked over the 40-hour mark. So if they worked 50 hours in a week, they’d be owed $10/hour for the first 40 hours and $15/hour for the other ten.

The minimum wage in Texas is $7.25/hour, which means the minimum overtime pay that a person could receive is $10.88/hour. But, as noted above, the overtime pay rate is calculated based on the employee’s standard pay rate, so it won’t be the same for everyone. For example, if you are an inside salesperson with a high base salary and significant commissions, your overtime rate could be hundreds of dollars an hour. If you are an oilfield worker such as a toolpusher or mud engineer, you may also earn and be entitled to significant overtime wages.

Who is exempt from overtime in Texas?

While many Texas employees are entitled to extra compensation for working overtime, these types of workers are usually exempt – meaning they’re not entitled to overtime pay:

• Legitimate independent contractors
• Outside salespeople
• Volunteers
• Amusement park employees
• Cab drivers
• Criminal investigators
• Farmers/agriculture workers
• Live-in help (housekeepers, au pairs, etc.)
• Movie theater employees
• Sailors/seamen
• Transportation workers

If you’re not sure if you qualify for overtime pay, contact a Texas unpaid overtime lawyer for a free, confidential consultation. An overtime attorney can help determine if you are owed compensation for back pay.

How many hours can you legally work per day in Texas?

Minus a few exceptions – pertaining to the retail sector, collective bargaining agreements, and religious discrimination – Texas employees can legally work an unlimited number of hours per day. According to the Texas Workforce Commission (TWC), “the only limits are employee morale, practical realities, and common sense in general.”

That said, many employers who overwork workers, schedule challenging shifts, and treat employees poorly are also potentially violating the requirement to pay overtime when required. The overtime law (FLSA) is one of the strongest worker protections in the country. If employers fail to follow it strictly, and the employees are owed back overtime, the employees may be able to file a lawsuit either individually or collectively.

Can an employee refuse to work overtime in Texas?

Texas employers can require their employees to work overtime, but unless the employees are exempt from overtime laws, they must be paid for time and a half according to the terms of the Fair Labor Standards Act. If an employee refuses to work overtime, their employer is within their right to terminate their employment because Texas is an at-will state, meaning employees can be fired at will for almost any reason (but cannot be fired for illegal reasons such as discrimination, whistleblower retaliation, etc.).

Firing an employee for demanding overtime pay or otherwise opposing a violation of the FLSA is illegal. The FLSA provides strong protection against retaliation for exercising your rights to receive minimum wage and overtime pay.

Salespeople are often cheated out of pay they are owed. Are you owed overtime on your commissions?

Software sales executives (AEs, BDMs, etc.) and other salespeople often get ripped off by their employers. People who sell software will often reach out to a Texas employment lawyer about unpaid commissions, unpaid PTO, and other pay issues when they arise or after getting fired or leaving a bad workplace. But we have identified a violation at both startups and post-IPO public software and SaaS companies where the salaried sales team may be entitled to significant overtime pay. Employers and employees alike may think that just because representatives receive a salary and commissions, they are not entitled to overtime pay, but that is absolutely not true.

To the contrary, the FLSA provides that inside salespeople who make more in base than commission are almost always entitled to overtime. And the FLSA further requires the employers to add commissions into the base salary to calculate an overtime rate that takes into account both the base pay and commission pay. This can amount to significant unpaid overtime recovery for salespeople who know their rights.

The setup is common, especially in Austin-based sales teams for California-based companies: All sales work is performed either from home or the office (rarely if ever on-site with the client), and the sales team is paid a decent base salary ($60-80k) plus variable commissions – but no overtime. Managers and supervisors then require the sales team to work mornings, nights, weekends, holidays, and through lunch to make and close deals to hit their quotas. Salespeople in this grind will sometimes work 45-, 50-, or even 60-hour weeks.

Unfortunately, despite promises by management, team leads, and bosses, the commissions very frequently do not amount to more than the base pay. In that situation, the company almost certainly owes the sales force overtime for hours worked over 40. But we have seen that we have to hold them accountable or else they will not willingly pay sales reps what they owe. This overtime violation for inside sales teams is an open secret, and some large technology employers in Austin have been hit with significant verdicts and settlements on this very issue, causing them to change pay practices and finally pay inside sales teams overtime.

Another potential violation occurs when an employer pays overtime, but fails to include the commission in the overtime rate. The FLSA is clear that any guaranteed compensation – including commissions, guaranteed performance bonuses, and kickers – must be added to your base salary before calculating the overtime rate. Employers often know this but still fail to comply, pocketing money they owe you and the rest of the sales team until someone holds them accountable.

I was salaried, but what if I did not carefully track my hours or submit timesheets – can I still recover overtime?

Yes. As long as the company had constructive notice you were working overtime, you can use SalesForce, other CRM software, emails, and texts to determine the overtime hours you worked and recover that time. Remember, the FLSA is clear that non-exempt salespeople must be paid for every hour worked, and must receive overtime for every hour worked over 40 in a workweek at a rate that includes base plus commissions.

Can I sue my employer for not paying me overtime in Texas?

Potentially, yes. If you’re a full-time employee (as opposed to an independent contractor or external salesperson) who makes less than $455 per week ($23,660 per year), and you haven’t been compensated at a higher rate after working more than 40 hours in a week, you may have a case. Whether you qualify for legal action also depends on your role and the industry in which you work.

Contact us for a free, no-obligation consultation to see if you can pursue compensation through an unpaid overtime lawsuit.

How much compensation can I receive from an unpaid OT lawsuit?

The money you can recover from an unpaid overtime lawsuit can be extremely significant. The exact number will depend on the unique factors of your case (e.g., how many unpaid hours you worked), as well as which laws your employer violated.

In most cases, these are the types of damages plaintiffs can recover:

• Economic damages: These include back pay covering all the compensation you should have received for your work;
• Punitive damages: Punitive damages are designed to punish the employer to discourage them from inadequately compensating employees in the future;
• Interest: Pre- and post-suit interest; and
• Attorney’s fees and court costs: The reasonable amount incurred in bringing a lawsuit.

The most important things to know are your likelihood of success and how much you may be able to recover. A Texas overtime attorney can help you calculate the potential value of your case.

How do I file a Texas overtime pay lawsuit?

Contact Kaplan Law – an employment law and civil rights firm that’s been proudly serving Texans since 2015. Founded by Austin Kaplan in Austin, Texas, our firm has represented hundreds of clients in a wide range of employment and civil rights matters, including claims for overtime violations, breach of contract, discrimination, harassment, and whistleblower retaliation.

We’ve recovered millions of dollars for our clients; received dozens of five-star reviews on Google and Avvo; and our attorneys have been featured in The New York Times, The Washington Post, Bloomberg, Fast Company, and on CNN.

Reach out today for a free, confidential case review to see if we can help you recover the compensation you deserve.