The Texas Overtime Pay Lawyer at Hill Law Firm is often asked questions about their job, how they are paid, and if their employer is treating them fairly. Too many times, employers are not properly paying employees for overtime hours. Federal law generally requires that employees must be paid minimum wage for all hours worked, and overtime for all hours worked over forty in a workweek. Just because you are paid a salary or work in a desk-job does not mean that you are not entitled to overtime. Moreover, the fact that you agreed to your employer’s method of payment does not mean that you are not eligible for minimum wage and overtime. Rather, to be exempt from the overtime laws, your job duties and payment scheme must meet all the requirements of one of the narrow exemptions to the overtime and minimum wage laws.
If you are not paid minimum wage and overtime pay, and you are a non-exempt employee, you may have a claim against your employer for all unpaid minimum wages and overtime for the last three years, an equal amount in liquidated damages, and attorneys’ fees. Please call the Texas Wage Theft Lawyer at Hill Law Firm in Houston or San Antonio today if you have any questions about the overtime and minimum wage laws. In the meantime, the discussion below can hopefully dispel some myths about overtime pay laws.
Three Myths of Overtime Law
Myth #1: Because I am paid a salary, I am not entitled to minimum wage or overtime pay.
Truth: This common statement is simply false. Being paid a salary is only one aspect of the tests your employer must satisfy to claim that you are exempt from overtime. Any employer must show not only that it pays you on a “salary basis” of at least $455 per week, but also that your duties and responsibilities meet the criteria for one of the applicable exemptions. For example, the employer must show that you direct the work of at least two full-time employees, have the authority to hire and fire employees or your recommendations concerning hiring and firing employees is given particular weight, or exercise discretion on matters of significance. If you are paid a salary and don’t have these duties and responsibilities, you could be entitled to substantial damages in unpaid overtime.
Myth #2: Because I am a “manager” or “supervisor,” I am not entitled to overtime pay.
Truth: This statement is also false. Whether an employee is entitled to overtime pay depends on his or her duties and responsibilities, and does not depend on the employee’s title. Not all managers or supervisors are exempt from the overtime laws. In fact, for a manger or supervisor to be exempt from the overtime laws, the employee must: (1) be paid a salary of at least $455 per week; (2) manage the company or a department of the company; (3) customarily and regularly direct the work of at least two full-time employees; and (4) have the authority to hire or fire employees, or his or her recommendations concerning the hiring, firing, or promotion of employees must be given particular weight. Unless the employer can prove each of these elements, the manager or supervisor is likely not exempt from the overtime laws.
Myth #3: Because I am an “intern,” I am not entitled to minimum wage and overtime pay.
Truth: This statement is also false. Internships in the “for-profit” sector will most often be viewed as employment under the overtime laws, and require the intern to be paid minimum wage and overtime pay.
The Department of Labor notes that the Fair Labor Standards Act (FLSA) definition of the term “employ” is very broad, and includes any employee who has to “suffer or permit to work.” That means the law requires that all covered and non-exempt individuals who are “suffered or permitted” to work have to be compensated for the services they perform for the employer. When it comes to internships in the “for-profit” private sector, unless the employee passes the “Test for Unpaid Interns,” which relates to trainees. Unless they fit well within that test will qualify as regular employees and will be subject to wage and hour laws, including being subject to the minimum wage and overtime compensation for any hours over forty worked in a seven day period.
The Test For Unpaid Interns details the circumstances under which participants in internships or training programs in the “for-profit” private sector may do so without compensation. According to the Supreme Court, the term “suffer or permit to work” cannot be used to make one person whose is working in their own self-interest the employee of another who simply provides aid or instruction. This would apply to interns who are part of a work-study program or a training program that meets certain criteria. Whether or not the internship or training program meets this exclusion depends upon all aspects of each such program, and whether or not it fits all six of the following criteria:
- The internship, even if it includes actual operation of the employer’s facilities, must be functionally similar to the training which would be given in an educational environment;
- The internship experience must be entirely for the intern’s benefit;
- The intern’s work much not displace regular employees, but rather performs work under close supervision of existing staff;
- The employer providing the training derives no immediate advantage from the intern’s activities, and the employer may find operations to be impeded on occasion.
- The intern is not necessarily entitled to a job at the conclusion of the internship; and
- Both the intern and the employer understand that the intern is not entitled to wages for time spent in the internship.
Unless every single one of the factors listed above have been met, an employment relationship exists under the FLSA, and the Act’s minimum wage and overtime provisions necessarily apply.
Contact Our Attorneys Today
The Texas Overtime Pay Lawyer at Hill Law Firm has been involved in Fair Labor Standards Act Overtime Wage Lawsuits against some of the largest companies in the United States. If you have questions regarding overtime pay or wage theft, contact the Texas Overtime Wage Theft Lawyers at Hill Law Firm today. Consultations can be completed in our Houston or San Antonio, Texas offices and are always free.