Author Archives: Logan Howard

When is Overtime Pay Required?

The Fair Labor Standards Act (FLSA) governs when an employer is required to pay overtime to an employee. The FLSA stipulates that unless an employee is exempt from the FLSA, an employer must pay the employee overtime for all hours worked in excess of 40 hours in a given workweek. Overtime pay must equal at least one and one-half times the employee’s regular rate of pay. Knowing if, and when, you may be owed overtime pay can be quite complicated, but the following provides a general overview of the primary issues concerning overtime pay.

Exempt vs Non-Exempt

One of the first steps in determining if you are eligible for overtime pay is to figure out if you are exempted from the FLSA. If you are an exempt employee, your employer is not required to pay you overtime pay for hours worked in excess of 40 hours per week. In this brief post, it would be impossible to address every possible job scenario as exempt or non-exempt. However, there are some general guidelines to remember when making the determination. To be exempt, an employee must meet the following criteria:

Be paid at least $455 per week ($23,600 per year)
Be paid on a salary basis
Perform exempt job duties.

The majority of the exempt job duties fall into three categories; executive. professional and administrative.

The executive exemption includes jobs in which the employee’s primary duty consists of managing the entity or a department or subdivision of the entity. The employee must also direct the work of two or more full time employees (or full time equivalent employees), and have authority in hiring, firing, promoting, or other terms and conditions of employment.
The professional exemption (also known as the learned professional exemption) includes jobs in which the employee’s primary duty consists of the performance of work that requires advanced knowledge or training in a field of science or learning. The employee must have also gone through specialized instruction/training to acquire that advanced knowledge.
The administrative exemption includes jobs in which the employee’s primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers. Additionally, the employee must exercise discretion and independent judgment with respect to matters of significance in order to be characterized as an exempt employee.

Calculating Overtime

For non-exempt employees, overtime is calculated by multiplying the employee’s regular rate of pay by one and one half and multiplying that number by the total number of hours worked over 40 hours in a given workweek.

An employee’s regular rate of pay is generally based on his/her hourly rate of pay. So if the employee earns $10.00 per hour, his/her overtime pay would be $15.00 per hour.

For a non-exempt employee who is paid a salary, the employee’s overtime rate can fluctuate from week to week depending on the number of hours worked. A salaried employee’s overtime pay is calculated based on the salary as well as the number of hours that the salary is intended to compensate the employee for. For a salaried employee who is expected to regularly work 50 hours per week, overtime is calculated by first dividing the employee’s weekly pay by the total number of hours worked. So if the employee earns $1,000 per week and worked 50 hours in a particular week, the employee’s regular rate of pay would equal $20.00 per hour that week. For that week, the employee would be owed $10.00 for each hour of overtime worked ($10.00 per hour x 10 hours of overtime = $100.00).

Non-Exempt Employee’s Right to Overtime Pay

If you are a non-exempt employee (or if you are unsure if you are exempt or non-exempt), you have certain legal rights that protect you when your employer fails to pay you overtime pay. A claim for unpaid overtime may be filed with the United States Department of Labor or the Texas Workforce Commission. However, speaking with an employment attorney knowledgeable in the overtime laws is an important first step in determining when overtime pay is required.

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City of Austin Passes Fair Chance Hiring Ordinance

The City of Austin is “banning the box” with its new employment Fair Chance Hiring Ordinance that was approved by an 8-2 vote on March 24, 2016. The new Ordinance will prohibit companies with 15 or more employees from questioning a job applicant about his/her criminal history until after a conditional job offer has been made. The purpose of the Ordinance is to give all individuals with criminal histories an equal opportunity in obtaining employment.

What is the Current Law in Texas?

Currently, Texas law does not prohibit discrimination towards an employee or job applicant because of that individual’s criminal background. Therefore, an employee in Texas has no legal recourse under state law if he/she is denied employment based on something in his/her criminal record.

While there is no state or federal law in Texas explicitly prohibiting discrimination based on an applicant or employee’s criminal history, the Equal Employment Opportunity Commission has issued guidance regarding the use of arrest and conviction records in employment decisions based on the discriminatory impact that criminal background check policies often have. Because minorities are imprisoned at a disproportionate rate, minorities tend to suffer more based on background check policies. However, this EEOC guidance does not prohibit the use of criminal background checks in employment decisions.

What Does the Ordinance Do?

The City of Austin Fair Chance Hiring Ordinance will only apply to those businesses within the City of Austin that have 15 or more employees.
The Ordinance only applies during the application process.
There is no prohibition against an employer firing an employee based on the discovery of some criminal history.
The law also does not prohibit an employer from revoking a job offer based on information obtained after a conditional offer has been made.

The Ordinance is not a state or federal law, so it does not give a job applicant the legal right to file a lawsuit if a company is in violation. An individual who believes that a company is in violation of the Ordinance will have the ability to file a complaint with the City. Ultimately, a company found to be in violation could face a $500 penalty.

Employee Rights

While the City of Austin Ordinance will potentially have an impact on the questions that applicants in Austin, Texas see when applying for jobs, it will do little to expand on the legal protections that employees in this State have from discriminatory treatment. If you believe that you have been discriminated against based on a company’s use of criminal history information, it is important that you speak with an employment lawyer to understand your rights.

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Filing A Complaint Against An Employer

The first step in determining how you go about filing a complaint against an employer is to figure out what type of complaint you are choosing to pursue. There are different legal requirements or limitations deadlines depending on the type of complaint, and various state and federal agencies have the authority to investigate depending on the type of complaint. Because the legal requirements are different depending on the type of complaint, it is always important to speak with a knowledgeable employment attorney in your area to know your legal rights and options. The following are examples of the complaint process for various employment claims:

Discrimination or Retaliatoin

Discrimination and retaliation complaints must be filed with the Texas Workforce Commission (TWC) and Equal Employment Opportunity Commission (EEOC). A complaint must be filed with the TWC within 180 days of the most recent incident of discrimination and with the EEOC within 300 days of the most recent incident of discrimination. The complaint document that an employee files is called a Charge of Discrimination, and it must be filed within the above time periods to have a viable claim. The TWC or EEOC will investigate the allegations and ultimately issue a right to sue which gives the employee the legal right to file a lawsuit.

Wage Claim

A federal wage claim is brought under the Fair Labor Standards Act (FLSA) and filed with the Department of Labor (DOL). The FLSA covers minimum wage requirements, overtime pay, exempt versus non-exempt status, and equal pay.

A wage claim can also be filed with the TWC pursuant to the Texas Payday Law. The Texas Payday Law covers the timely payment of wages, deductions from wages, compensable time, enforcement of a wage agreement, and final pay.

Once a claim is filed with either the DOL or TWC, the agency conducts an investigation to determine whether or not the employee is owed any unpaid wages.

Whistleblower Claim

The Texas Whistleblower Act covers public employees in Texas who have (1) reported in good faith what he/she believes to be a violation of federal or state law, a local government ordinance, or a rule adopted under a law or an ordinance (2) to an appropriate law enforcement authority, and (3) been suspended, terminated, or adversely affected by another personnel action for having reported the violation. If the public employee is suspended, terminated, or adversely affected, he or she must first file a grievance or appeal with the employer within 90 days of the violation (if the employer has a grievance policy or appeal procedure). Finally, the public employee must file a lawsuit under the Texas Whistleblower Act within 90 days of the violation (not including the time spent in the employer’s grievance/appeal procedure).

OSHA Violation

The Occupational Safety and Health Act (OSHA) is meant to prevent workers from being subjected to unsafe working conditions. Employees have the right to complain directly to their employer about perceived OSHA violations or file a complaint directly with the Occupational Safety & Health Administration.

If an employee is fired, demoted, transferred, or discriminated against in another way for having filed an OSHA complaint, the employee has the right to file a discrimination complaint with OSHA within 30 days of the alleged retaliation.

Before filing any complaint, consult with an employment attorney in your area to best understand your legal rights and obligations.

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Breaks At Work: The Facts about Texas Labor Laws and Employee Breaks

Under Texas Labor Laws that address break periods throughout a workday, employers have no legal obligation to provide their employees with coffee, rest, or lunch breaks. Many employers do offer this benefit, but since it is their choice and not a legal requirement, they can eliminate this perk at any time.

Federal and Texas Laws:

The United States Department of Labor’s policy regarding breaks and meal periods does not require employers to provide lunch or coffee breaks and Texas Workforce Commission laws are the same. Under these laws, if an employer offers short breaks of between 5 and 20 minutes, they are considered part of an employee’s workday and must be paid and included when determining overtime. Bona fide meal periods are different from the short breaks and usually last at least 30 minutes. These meal breaks are not considered work time and therefore are not paid or considered when calculating overtime. It is important for employees to remember that the rules on what break periods are or are not compensated is only relevant if the employer chooses to provide these breaks.

Additional Breaks:

Although Texas employers are not required to provide breaks under current Labor Laws there are some exceptions to these rules including:

Nursing Women: Federal Labor Laws require employed women be allowed a reasonable time to breast feed or express milk for the first year of their child’s life. She does not have the right to be compensated for this break unless she uses her allowed “short breaks” to perform this task, if this option is provided through her employment.
Rest Break Ordinance: In 2010, Austin, Texas enacted an ordinance that states, “All employees performing construction activities at a construction site are entitled to a rest break of no less than ten (10) minutes for every four (4) hours worked. No employee may be required to work more than four hours without a rest break.” (Ordinance No. 20100729-047).

In addition, an employer cannot discriminate by giving one employee or group of employees breaks but not others.

Working Lunch:

Federal and Texas labor laws require that employees be compensated for the time they work. While employers are not required to pay employees for meal breaks, they must do so if an employee works through this break. Federal and Texas Labor Law requires that an employee must be relieved of all duties during the meal break for it to be unpaid. Employees who are not relieved of all active or inactive duties while they are on a meal break must be compensated for their time as a working lunch. Work activities can include but are not limited to:

Answering telephones
Greeting clients, customers, or visitors
Reading or writing work-related documents or reports
Meetings

If an employee engages in these or other work related activities, he or she must be paid for this time.

Employee Rights

All employees in Texas are required to be paid for their work. However, under Texas Labor Laws on rest and lunch breaks, employees have no legal right to demand or require such breaks. If an employer does provide breaks, all employees are entitled to be paid for short breaks as part of their daily work but not meal breaks unless such breaks qualify as a working lunch.

If your pay is docked for allowed short breaks or working lunches, you can take measures to recoup your docked pay. To learn more about your rights and possible claim under Texas Labor Laws regarding breaks, consult with an experienced employment attorney in your area.

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Am I Eligible For Unemployment Benefits?

Unemployment Benefits are offered to employees in Texas who meet certain requirements. The Texas Workforce Commission is who administers and determines who qualifies for unemployment benefits. There are two essential criteria that the Texas Workforce Commission uses to determine eligibility: past wages and job separation.

Unemployment Eligibility: Past Lost Wages

First, they look at your past wages during a base period (the first four of the last five completed calendar quarters). You must have received wages during more than one of the four calendar quarters, and the total base period wages must equal at least 37 times your weekly benefit amount. To see how you calculate your base period, I would suggest visiting the Texas Workforce Commission website.

What was the basis for the employee’s job separation?

The next criteria for determining unemployment eligibility is job separation. While I cannot list every single possible scenario for job separation, the following are examples of situations when you may be eligible for collecting unemployment benefits…

Laid off
Fired for a reason other than misconduct
Quit the job with good cause

If you are forced to quit your job because of your own health or a family member’s serious health condition, you may be eligible for unemployment benefits. You may also be eligible for unemployment benefits if you quit the job due to harassment or discrimination by a supervisor that your employer fails to correct.

Did the employee commit misconduct?

One of the most critical factors in evaluating an applicant’s job separation is determining whether or not the individual committed misconduct. Section 201.012 of the Texas Unemployment Compensation Act defines ‘misconduct’ as “mismanagement of a position of employment by action or inaction, neglect that jeopardizes the life or property of another, intentional wrongdoing or malfeasance, intentional violation of a law, or violation of a policy or rule adopted to ensure orderly work and the safety of employees. The term ‘misconduct’ does not include an act in response to an unconscionable act of an employer or superior.” If you are found to have committed misconduct, you will not be eligible for unemployment benefits.

Appeals Hearing before a Texas Workforce Commission Hearing Officer

Ultimately, if you and your former employer provide contradictory information to the Texas Workforce Commission about your job separation, your claim will end up in an Appeals Hearing before a hearing officer. During this telephonic hearing, you and your former employer will each be able to present any testimony and evidence concerning your claim for unemployment benefits. You have the right to have an attorney represent you in this Appeals Hearing, and it can be very helpful to have a representative advocating on your behalf. If you have been notified that you will be having an Appeals Hearing, contact an employment attorney immediately to discuss your options.

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The EEOC Discrimination Complaint Process

When an employee in Texas believes that he or she has been discriminated against in the workplace, that employee has the right to file what is called a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and the Texas Workforce Commission (TWC). While it is filed with both the EEOC and TWC, it is ultimately only investigated by one agency. Discrimination can be based on any of the following characteristics: race, color, gender/sex, pregnancy, disability, national origin, age (40 or older), religion, or genetic information. A Charge of Discrimination may also be filed when an employee suffers from retaliation following a complaint about discriminatory treatment in the workplace. You have the right to file a Charge of Discrimination on your own or with the representation of an employment lawyer.

The First Step: Mediation

The first step in the EEOC discrimination complaint process following the filing of a Charge of Discrimination with the EEOC and TWC is mediation. Generally, the EEOC and TWC will offer mediation to the complainant (employee) and respondent (employer) before any investigation has been conducted. Mediation is a voluntary process for both parties to participate in to attempt to resolve the complaint. Both parties must agree to the mediation for it to actually take place. If one party declines mediation, then the Charge of Discrimination will be assigned to an investigator. Additionally, if the parties do participate in mediation, but there is no resolution, then the Charge of Discrimination will be assigned to an investigator.

The Investigation Begins

Once the Charge of Discrimination is assigned to an investigator, the investigation begins. During this process (which generally lasts between 6 months and a year), the investigator has the opportunity to obtain a position statement from the employer, interview the employee and any other witnesses, and gather evidence from both sides.

The Final Step: Right To Sue

The final step in the process is for the EEOC or TWC to issue a determination and Notice of Right to Sue. If the EEOC or TWC determines that the evidence shows that there was a violation of law, they will attempt to reach a settlement with the employer. If they cannot reach a settlement, then the EEOC or TWC will decide if the agency should file a lawsuit against the employer. If they do not file a lawsuit, you will receive a Right to Sue. If the EEOC or TWC is unable to determine that there was any violation of law, you will still receive a Right to Sue. At that point in time, you will have the legal right to file a lawsuit against the employer.

Before filing a Charge of Discrimination, it is always helpful to consult with an employment attorney in your area. He or she will be able to better advise you of your rights.

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