Overtime Pay Frequently Asked Questions


Our Dallas based employment lawyers have assembled a list of the most frequently asked questions about overtime pay eligibility. Their answers are below

Am I eligible for overtime?

A worker’s eligibility for overtime pay depends on how the individual is categorized under the Fair Labor Standards Act (FLSA) and other laws.  Workers are generally divided into two categories:  “exempt” and “non-exempt.”  Only “non-exempt” workers are legally entitled to overtime pay.

Exempt employees are typically those in executive, professional, and administrative jobs, such as lawyers, doctors, accountants, outside sales professionals, and technology workers.  Certain seasonal and domestic service jobs also are exempt.  Courts typically look at a worker’s specific job duties, rather than general job title, in determining exempt status.

When is overtime due?

For covered, non-exempt employees, the Fair Labor Standards Act (FLSA) requires overtime pay at a rate of not less than one and one-half times an employee’s regular rate of pay after 40 hours of work in a 7-day “work week” (“time-and-a-half”).  Some exceptions to the 40 hours per week standard apply under special circumstances, including police officers and fire fighters employed by public agencies and employees of hospitals and nursing homes.

What is the overtime pay rate?

The FLSA and various state laws typically require employers to pay workers “time-and-a-half” for every hour an employee works over 40 hours in a work week. A “work week” is 7 consecutive days.  That means that an employee who typically makes $10 an hour must be paid $15 per hour for overtime.  For non-exempt employees whose normal pay is not an hourly rate, their regular pay will need to be converted to an hourly equivalent.

Can my employer average two weeks of time or only pay overtime for over 80 hours in a bi-weekly pay period?

No, except for a limited set of jobs, overtime must be calculated for each 7-day work week.  An employee who works 50 hours the first week of a pay period and 30 hours the second week of a pay period must be paid 10 hours of overtime for the first week.  The employer cannot refuse to pay overtime because the employee’s work hours averages to 40 hours per week for the whole pay period.

Can my employer deduct time for lunch and breaks?

Texas law and the FLSA do not require employers to provide breaks for meals or brief rest periods, but if breaks are provided, employers must follow the FLSA and the U.S. Department of Labor’s guidelines.  Meal periods, usually at least 30 minutes long and during which an employee is relieved from all work, are unpaid.  If meal periods are automatically deducted from their pay, then the employees should not be required to perform any work during that time (see below).

Breaks or brief rest periods, usually no longer than 20 minutes, that are not provided for purposes of eating a meal, are compensable time periods for which employees must be paid.  Employees should check the employer’s written policies about short breaks. An employee may be disciplined for taking longer breaks than allowed, which can include a deduction for the excess time above the allowed amount of time for the break or even termination.

Am I entitled to be paid for meal breaks that I work through?

Yes, non-exempt employees must be paid for every hour that they work.  Many employers violate the FLSA by not paying employees for meal breaks that often are interrupted for work or for off-the-clock work that accumulates every day.

Under the FLSA, you must be relieved of all duties during your meal break.  If this time is interrupted at any point for work, whether for a phone call or e-mail, you are eligible to be paid for that time.

Many employers also automatically deduct a lunch period daily, even though many employees never take a lunch break.  The time you put in at work adds up every day and if you are not compensated for off-the-clock work you may have a claim for back wages and overtime under the FLSA.

Should I be paid for overtime even if it wasn’t authorized?

Yes.  Under the Fair Labor Standards Act, an employer who has reasonable knowledge that an employee was required or permitted to work should compensate that employee for his or her time, even if the company requires overtime to be authorized beforehand.

How many hours per day or per week can an employee work?

The FLSA does not limit the number of hours per day or per week that employees aged 16 and older can be required to work.

Is extra pay required for weekend or night work?

Extra pay for working weekends or nights is a matter of agreement between the employer and the employee.  The FLSA does not require extra pay for weekend or night work. The FLSA does require that covered, non-exempt workers be paid not less than one and one-half times the employee’s regular rate for time worked over 40 hours in a 7-day work week.

When is double time due?

The FLSA has no requirement for double-time pay.  This pay rate is a matter of agreement between an employer and employee.

Can my employer compensate me for overtime with something other than money?

No.  The law currently requires private employers to compensate their workers for overtime hours with overtime pay.  A private employer may not offer “comp time” or extra paid time off in lieu of additional pay for overtime.  Public sector workers, however, may be given comp time instead of overtime pay.

How can I recover unpaid overtime I am owed?

The FLSA and state laws allow a worker who has been wrongly denied overtime – whether by being misclassified as exempt or as an independent contractor, required to work off the clock, or simply not being paid – the right to sue his or her employer for unpaid wages as well as other damages and penalties.  It is important to keep in mind that the laws protect a worker who sues his or her employer for unpaid overtime from retaliation in various forms, including firing and demotion.

Can I get fired for complaining about unpaid overtime?

That’s a fair and commonly-asked question.  The FLSA protects workers who demand fair payment for overtime by imposing both criminal and civil penalties on employers who retaliate against them.  This protection is important because of the fear an employer can impose on an employee who cannot afford to lose his or her job, yet is not getting paid overtime required by law.  Employees are protected not just for formal complaints made in court or to the Department of Labor, but also to some informal complaints made directly to employers.  Illegal retaliation is not limited to just being fired, though.  An employer also cannot retaliate by demoting the employee, reducing his or her hours, shifts, or duties, giving false poor performance ratings, or “blackballing” an employee to unfairly prevent future employment opportunities.

What should I do if I think I’ve been wrongly denied overtime pay?

Contact an experienced labor and employment attorney who can examine your case, help you weigh your options, and negotiate with your employer when possible.

At Spencer Scott pllc, we are dedicated to ensuring that workers are paid for the time they put in at their jobs.  Contact us  online or call 972-458-5319 to schedule a free and confidential consultation.

What if I’m paid a salary?

Salaried workers are also entitled to overtime pay for all hours worked over 40 hours in a work week if the employee is classified as non-exempt under the FLSA.  To see if you may be misclassified as exempt, click here.

Are you really salaried?

Being salaried means you get paid the same amount for each pay period, even if you only worked 35, 25, or even 10 hours.  The salary must be a guaranteed amount.  If your employer can reduce your pay based on the quality or quantity of your work, or for other special situation, then the employer has destroyed your status as being salaried.  Be sure to check your employer’s employment policies – and your paystubs – for possible reductions.

Remember:  you may still be entitled to overtime pay even if your employment contract or paystub reflects a “salary” or other “fixed” rate.

Are you exempt?

Most people think that just because they are paid a salary, they are automatically exempt and not entitled to overtime.  Being paid a salary is NOT the same as being exempt.

For overtime purposes, employees are either “exempt” or “non-exempt.”  Non-exempt employees are entitled to overtime pay.  Exempt employees are not.

Generally, to be “exempt” requires both of the following criteria to be met:

  1. The employee must be paid a salary or fee (not hourly) of more than $455 per week, and
  2. The employee must perform the duties of an exempt employee.

An employee who is paid on an hourly basis is “nonexempt” no matter what kind of work she does (except for doctors, lawyers, and teachers).

An employee who is paid a salary is still “non-exempt” unless she also performs exempt job duties, which generally fall into three categories: Executive, Administrative, and Professional.