Learn more about your FLSA overtime pay rights.

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Far too many workers are over worked and under paid. If you believe you are not being paid all wages you are owed, find out your rights. This page explains some of your basic rights under the federal wage protection law known as the Fair Labor Standards Act (FLSA). 

The FLSA is a federal law that requires most employers to pay their employees overtime wages and minimum wages. 

The FLSA requires non-exempt employees to be paid time and one-half their regular rate of pay for each hour worked over 40 hours in a seven-day workweek. Even employees who are salaried, commissioned, paid a day rate, or paid on a piece-rate basis (such as pay per item completed or pay per square foot) can be entitled to overtime pay. So, it is not just hourly employees who can get overtime pay.

Some states have overtime pay laws that provide additional employee rights. Examples include New Mexico, Colorado, and California. Texas does not have a state overtime law, so employees in Texas must generally rely on the FLSA for their overtime wage rights.

Non-exempt employees are entitled to overtime pay under the FLSA whereas exempt employees are not. Common exemptions include the executive exemption, administrative exemption, professional exemption, outside sales exemption, and motor carrier act exemption.

It is important to know that the employer has to prove that the employee is exempt (not entitled to overtime wages) as opposed to the employee having to prove he or she is non-exempt (entitled to overtime wages).

In evaluating your exemption status, job titles are not controlling. The exemption status of any particular employee must generally be determined on the basis of whether the employee's salary and primary job duties meet the elements of a particular FLSA exemption. So, even if your employer labels you as an exempt manager, you may still be entitled to overtime pay. The U.S. Department of Labor's regulations set the minimum salary level for most FLSA exemptions as follows:

• January 1, 2020 - June 30, 2024 - $684 per week ($35,568 per year)
• July 1, 2024 - December 31, 2024 - $844 per week ($43,888 per year)*
• January 1, 2025 and forward - $1,128 per week ($58,656 per year)*

However, on November 15, 2024, a federal judge entered an injunction for the 2024 and 2025 salary increases, so the minimum salary required remains at $684 per week ($35,568 per year) pending any appeal overturning that ruling.

There are too many factors for FLSA exemptions to cover them here. Please contact the Vaught Firm for a no cost initial consultation to learn more about your FLSA exemption status. 

 A non-exempt employee must be paid time and one half their "regular rate" of pay for each hour worked over 40 per seven-day workweek. But the "regular rate of pay" is not necessarily the same thing as “hourly pay.” Employees who are paid a salary, day rate, commission, or on a piece rate basis may still be entitled to overtime pay like employees who are paid on an hourly basis. So, the FLSA provides for those types of pay to be converted into an "hourly" number to determine time and one-half overtime pay. 

An employee’s “regular rate" of pay generally includes all money an employee receives for that workweek. In other words, there are other types of pay that must be added to the base pay to calculate the hourly time and one-half number. Here are a few examples.

• Bonuses – If you receive a bonus tied to achieving a certain result or working certain hours, that bonus must generally be included in your regular rate overtime pay calculation.

• Commissions - commission pay must typically be included in your regular rate overtime pay calculation.

• Shift Differentials – There are some jobs that provide extra compensation to workers who perform certain activities, such as additional pay for working night shifts or weekend shifts. That compensation must typically be included in your regular rate overtime pay calculation.

 
So, if your employer is not including certain pay (such as bonuses, commissions, or shift differentials) along with your base pay in calculating your overtime hourly rate, that employer may be underpaying you the overtime wages you are owed. 

The FLSA provides that only employees are entitled to overtime pay and minimum wage protections. However, employee status cannot be waived. So, even if there is a contract the worker signs stating that he/she is an independent contractor, that cannot necessarily defeat FLSA employee status and the right to overtime and minimum wages. If the facts show that you are really an employee as opposed to an independent contractor, then you may be protected by the FLSA's overtime and minimum wage laws.

Courts have created the economic realities test to determine if a worker is really an employee entitled to FLSA protections as opposed to an alleged independent contractor who is not. Generally, courts consider the following factors to determine if a worker is an employee instead of an independent contractor. 

1. the degree of control exercised by the alleged employer, 
2. the extent of the relative investments of the worker and the alleged employer, 
3. the degree to which the worker's opportunity for profit or loss is determined by the      alleged employer, 
4. the skill and initiative required in performing the job,
5. the permanency of the relationship, and
6. whether the work performed was an "integral part" of the alleged employer's business. 

However, all of those elements do not have to be in your favor for a Court to find that you are really an employee under the FLSA. Please contact the Vaught Firm for more information.

When an employer violates the FLSA, the employee or former employee may recover their unpaid overtime wages for up to the three-year period before the date they file a legal proceeding. Furthermore, employees are generally entitled to an additional amount of money known as liquidated damages that equals the amount of unpaid overtime pay. For example, an employee who is owed $5,000 in back overtime wages is generally owed and additional $5,000 for liquidated damages, or $10,000 total. Finally, the FLSA requires the employer to pay legal fees and costs to the prevailing employee's attorney. The FLSA does not require an employee to pay legal fees to the employer if the case is not successful. 

 This webpage should not be considered legal advice. Contact the Vaught Firm for a no cost initial consultation to learn more about the applicable law relative to your specific situation. The content of this page is based on federal law within the U.S. Court of Appeals for the Fifth Circuit and Texas state law.