Employers routinely fail — whether intentionally or unintentionally — to account for legitimate overtime hours worked by their employees. Conversely, there are many cases in which an employee may believe that they are entitled to overtime pay despite the circumstances (and applicable regulation) pointing to a different conclusion. Often, there is significant miscommunication at some phase in the employment process where both parties (the employer and the employee working overtime) do not have a shared understanding with regard to overtime exemption status and hours worked. Whereas an employee may believe that they are entitled to overtime, an employer may believe that the employment contract unambiguously exempted the employee from overtime.
At Berg Plummer Johnson & Raval, LLP, our overtime lawyers have successfully litigated both sides of an overtime dispute. As a result of our comprehensive, end-to-end representation of employers and employees in overtime disputes, we are uniquely positioned to undermine the tactics of opposing counsel and put forth a winning argument.
Overtime is governed by both state and federal law. In Texas, overtime work pays 150 percent the standard rate. Given the substantial cost differential, employers often look for opportunities to avoid paying overtime by reclassifying employees as “exempt” from overtime pay, scheduling employees in such a way so as to avoid extra hours adding up to overtime in a selected workweek, and more.
All employees are entitled to overtime for hours they work in excess of 40 hours per given week, unless they fall into one of the “exempt” categories outlined by federal and state law. Whether an employee is exempt from overtime is a critical issue in many overtime disputes.
Exempt employees include:
- Salaried employees
- Independent contractors
- Temporary workers (i.e., contract labor, seasonal workers, etc.)
- Industry-based exempt workers (i.e., railroad employees, taxis, delivery drivers, farmworkers, etc.)
In some cases, employers will attempt to reclassify a worker into an exempt category so as to avoid paying overtime. Reclassification may be legitimate, but only if the reclassification substantially affects the job duties of the worker enough to transform their category under the law. When there has been a reclassification, it may also be introduced as evidence to show that the worker was entitled to overtime pay prior to the reclassification.
Manipulation of Overtime Hours
Employers can and often do manipulate hours worked to minimize the overtime hours that an employee can claim.
- Not “counting” hours spent on preparation, safety, training, travel, meetings, work socials, and on-call time
- Outright deletion or manipulation of hours on employee timesheets
- Scheduling an employee so that would-be overtime hours fall into the next workweek, and cutting down hours for the next week
Berg Plummer Johnson & Raval, LLP is a full-service Houston-based firm that provides comprehensive transactional and litigation services to clients in the employment context, including situations that involve disputes relating to overtime work. Our Houston overtime lawyers have decades of experience handling a variety of labor and employment disputes. We are well-equipped to negotiate a favorable compromise prior to litigation, but are willing and able to pursue an overtime claim through to trial if necessary — thanks to this aggressive representation, our clients enjoy a competitive edge during negotiations.