While many employers choose to offer vacation and/or sick leave to their employees, there is no general requirement that an employer offer vacation or sick leave to its employees under Texas or federal law.  However, under certain circumstances, an employer may be required by law to provide an employee with leave due to the employee’s own medical condition or to care for a family member who is suffering from a medical condition.  There are also certain legal obligations for employers who do have written vacation and sick leave policies.

Leave Requirements under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA)

The ADA requires employers to provide a “reasonable accommodation” to employees with disabilities.  While there are any number of modifications that can be made to a particular employee’s job duties to accommodate him/her, leave from work may also be considered a reasonable accommodation.  For example, if an employee is suffering from a disability which requires surgery, the employer may be required to provide that employee with a certain amount of leave to undergo the surgery and recover from the surgery.  However, the employer is only required to do so as long as granting the leave does not cause an “undue hardship” for the employer.  This means that an employer may not be required to grant the leave if it would cause significant disruption/difficulty or expense to the employer.

Under the FMLA, an eligible employee is entitled to up to 12 weeks of unpaid leave when that employee suffers from a serious health condition, to care for a family member (spouse, child, or parent) who suffers from a serious health condition, or following the birth of a child.  An employee who takes leave under the FMLA cannot be fired or otherwise retaliated against for taking or requesting FMLA leave, and he/she must be restored to his/her original job (or equivalent) upon return from FMLA leave.

While the ADA applies to all employers with 15 or more employees, the FMLA is only applicable for employers with 50 or more employees within a 75 mile radius.  Additionally, to be eligible for leave under the FMLA, the employee must have worked at least 1,250 hours over the course of a 12 month period preceding the leave.

What Happens to My Accrued Leave when I am Terminated?

Under the Texas Payday Law, accrued leave must be paid out to an employee only when the payout has been promised in a written policy or agreement with the employer.  How and when this payout is made is subject to the language of the policy or agreement.  This means that depending on the wording, the payout of accrued but unused leave may only be paid out when an employee is

•  terminated without cause
• gives the employer proper advance notice of resignation.

If there is no written policy, there is no legal requirement for the employer to payout an employee’s leave balance upon employment separation.                               

If you have recently been terminated, laid off, or resigned, and your employer is refusing to payout your accrued leave, it is important to consult with an employment attorney in your area. You may have the right to pursue a breach of contract claim or a wage claim against your employer.

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:

1. Be paid at least $455 per week ($23,600 per year)
2. Be paid on a salary basis
3. 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.