Texas and New Mexico Overtime Lawyers


Overtime Laws

Overtime in Texas and New Mexico is governed by federal law and specifically the Fair Labor Standards Act (“FLSA”). Under the Fair Labor Standards Act, non-exempt employees who work more than 40 hours per work week are typically entitled to receive at least one and one half times their regular rate of pay for the overtime hours.


The Act applies to individual employees and enterprises who in any workweek (are) engaged in commerce or in the production of goods for commerce. [29 U.S.C. Section 206 (a)]. For most firms to meet the engaged in commerce requirement, the employer must have annual revenues of at least $500,000. The Fair Labor Standards Act covers the following companies regardless of sales volume:

  • Hospitals and other institutions that care for the sick, aged, mentally ill, or disabled
  • Educational institutions including preschools, elementary, secondary, and higher education schools
  • Local, state, and federal government agencies


The following individuals are not considered employees and therefore are not covered by the Fair Labor Standards Act or eligible to meet the requirements of the provision:

  • Volunteers
  • Independent Contractors
  • Partners


Who is Exempt From Overtime Pay?

The general rule is as follows: Employees are classified as non-exempt by the Fair Labor Standards Act and entitled to overtime pay. This liberal interpretation of the Fair Labor Standards Act is meant to accomplish the goal of outlawing from interstate commerce, goods produced under conditions that fall below minimum standards of decency (Alamo Foundation v. Secretary of Labor, 471 U.S. 290 1985). However, exemptions do exist that relieve an employer of overtime pay requirements. Exempt employees typically fit into one of the following categories:

  • Administrative employees paid on a salary basis a minimum of $455 per week and whose primary duties involve general business operations
  • Executive employees paid on a salary basis a minimum of$455 per week and whose primary responsibilities are managing the company, directing the work of at least two employees, and having the authority to hire and fire employees
  • Professional employees paid on a salary basis a minimum of $455 per week and whose work performance requires advanced knowledge, extensive education, innovation, creativity, or talent.
  • Outside sales employees whose primary duty is selling products or services away from the employer’s place of business
  • Computer Systems Analysts paid a rate not less than $27.63 per hour and who design, develop, analyze, test, modify, or consult with users about computer systems and programs
  • Certain agricultural employees
  • Housekeepers, cooks, babysitters, and chauffeurs who provide domestic services and companionship
  • Salespersons engaged in selling cars, trailers, boats or aircraft
  • Highly paid employees earning at least $100,000 per year and who perform one or more of the above exempt jobs


How Do You Know If You Are an Exempt Employee?

The best way to discover your proper pay status (exempt or non-exempt) as an employee is to contact an Austin overtime lawyer that specializes in representing employees. Many overtime exemption classifications are highly case specific and require a careful application of facts to the relevant law. If you cannot contact an attorney who specializes in representing employees, you may contact the United States Department of Labor. The Department of Labor also maintains a very good web site which provides information for employees about overtime classifications. You may access that web site here.


PLEASE NOTE: EVEN IF YOUR EMPLOYER HAS CLASSIFIED YOU AS EXEMPT DOES NOT MEAN THAT YOU ARE ACTUALLY EXEMPT FROM OVERTIME. IN THE PAST DECADE, IT HAS COME TO LIGHT THAT MANY EMPLOYERS BIG AND SMALL HAVE FAILED TO PROPERLY CLASSIFY THEIR EMPLOYEES PURSUANT TO OVERTIME LAWS.  TO DETERMINE IF YOU HAVE BEEN PROPERLY CLASSIFIED, YOU SHOULD CONTACT AN OVERTIME ATTORNEY IN AUSTIN OR NEARBY YOUR WORKPLACE.


Common Employer Violations:

Some employers commit the following violations of the Fair Labor Standards Act intentionally to avoid paying overtime, while other employers fail to understand the extent of the law:

  • An employer miscalculates an employee’s regular rate of pay by failing to include in calculations bonus or other incentive pay for specific shifts worked
  • An employer does not include in hours worked time spent traveling for job purposes, including work related overnight stays, travel on the weekends, travel between work sites, and work related duties performed while commuting to and from work
  • An employer misclassifies an employee as exempt
  • An employer pays employees cash off the books without filling out W-2 forms and believes the lack of records alleviates the duty to pay overtime
  • An employer requests that an employee who works in excess of 40 hours one week take time off the following week to obtain an average of 40 hours worked per week
  • An employer requires an employee to seek medical attention during the workday for job related injuries, but fails to include time spent waiting for and receiving treatment in hours worked
  • An employer shortchanges an employee’s hours by not paying for short 5-20 minute breaks or for lunches spent working
  • An employer establishes a Collective Bargaining Agreement between the company and its employees that waives employees’ rights, including what hours must be counted as hours worked
  • An employer knows or has reason to know that an employee is continuing to work after hours and the employer is benefiting from work performed, but does not include the time in hours worked
  • An employer does not treat time that an employee spends correcting errors or mistakes in his or her work as time worked
  • An employer does not include in hours worked time that an employee spends waiting for work and is without a task, but is still required and allowed to be on the job


What to Do if Your Employer Denies Your Right to Overtime Pay?

Contact an overtime attorney immediately, and preferably an attorney who routinely represents employees in employment litigation. To preserve your rights under the law for this type of illegal employment action, you should act quickly as overtime claims are typically subject to a two year statute of limitations. Lastly, keep all records related to employment and hours worked. These records may prove invaluable in a later lawsuit.


Overtime Retaliation

The FLSA also provides that it is illegal, in certain circumstances, for an employer to retaliate against an employee for seeking to enforce his overtime rights. For example, courts have found that it is illegal for an employer to retaliate against an employee for contacting the Department of Labor about overtime violations.






Law firm

If you feel you have been discriminated on the basis of pay and wish to speak to a Texas equal pay rights attorney at the Martinez & Martinez Law Firm, please submit a case review form or contact us at Martinez@martinezlawyers.com.   

CAUTION: The information on this webpage and website does not constitute legal advice. The purpose of this information is to provide GENERAL information to the public and to raise awareness of Texas employment laws for Texas employees. DO NOT read anything here and make a decision affecting your legal rights, such as a decision not to pursue a lawsuit or to file a lawsuit, without first consulting a lawyer. ONLY your own individual attorney can provide you with legal advice and properly inform you of your rights and remedies under the law. This website does not guarantee the accuracy of any of the information provided within it. Finally, this information only applies to Texas employees, as employment laws differ greatly from state to state. 

This is not legal advice.

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