Don’t Let Your Employer Take Advantage of You – Know Your Rights
Far too many workers are over worked and under paid. Many people work hundreds of hours of overtime a year without being paid fairly for that hard work. 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).
What is the 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.
The FLSA also requires non-exempt employees to be paid an hourly minimum wage of $7.25.
I Am Supposedly an Independent Contractor - Am I Still Covered by the FLSA Overtime and Minimum Wage Laws?
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 look at the following factors to determine if a worker is an employee instead of an independent contractor.
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.
What About Travel Pay?
Whether travel time must treated as paid time under the FLSA overtime and minimum wage laws depends on the specific situation for non-exempt employees. If your employer is not accurately treating certain travel time as paid time, that may result in you being underpaid the FLSA overtime or minimum wages owed.
Exemptions from FLSA Overtime and Minimum Wage Laws
Non-exempt employees are entitled to overtime and minimum wages under the FLSA whereas exempt employees are not. 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.
However, it is important to know that the employer has to prove that the employee is exempt (not entitled to overtime wages or minimum wages) under an exemption as opposed to the employee having to prove he or she is non-exempt (entitled to overtime wages and minimum wages).
In evaluating your exemption status, please know that 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 duties meet the elements of a particular FLSA exemption.
How is FLSA Overtime Pay Calculated?
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 forms of compensation that also have to be added to the base pay calculation in order to get the hourly time and one-half number. Here are a few examples.
So, if your employer is not including certain additional pay (such as bonus pay) along with your base pay in calculating your overtime hourly rate, that employer may be underpaying you the overtime wages you are owed.
Can the Employer Deduct Money from My Wages or Not Reimburse My Work Expenses?
The FLSA generally requires wage payments to employees to be “free and clear.” Whether in cash or in facilities, wages cannot be considered to have been paid by the employer and received by the employee unless they are paid finally and unconditionally or free and clear.
Furthermore, under Texas law, an employer may not withhold or divert any part of an employee's wages unless the employer: (1) is ordered to do so by a court of competent jurisdiction; (2) is authorized to do so by state or federal law; or (3) has written authorization from the employee to deduct part of the wages for a lawful purpose.
However, certain deductions (or withholdings) from wages are lawful. For example, withholdings for FICA taxes (a/k/a payroll taxes) and income taxes generally do not violate the FLSA or Texas state law.
Can My Employer Keep Some or All of My Tips?
With the exception of valid tip pooling arrangements, the general answer is that an employer may not keep an employee's tips. The FLSA was specifically amended in 2018 to protect employee tips.
What Money Can I Recover if My Employer Violated the FLSA?
When an employer violates the FLSA, the employee or former employee may recover their unpaid overtime or minimum wages for up to the three year period before the date they file a legal claim for that money. Furthermore, employees are generally entitled to an additional amount of money that equals the amount of back overtime or minimum wages, which is known as liquidated damages. 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.
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.