On September 5, 2018, board-certified employment attorney Kerry O’Brien participated as the “employee lawyer’s perspective” for the “Who is the client?” presentation to the Austin Bar Association Labor & Employment Section. The panel discussion with Kerry and three employer-side attorneys discussed the ethical considerations involved in determining when someone is, and is not, a “client.” […]Read More
You’re on this page because you’re wondering if you’re owed money. It could be a little – and it could be a lot. And perhaps you know you’re owed money, and you just need help recovering it. We’re here for that.
When an employer fails to pay you all of the pay that you’re due, that means you’ve given your time and sweat to help someone else make money – yet that “someone else” still has some of your money for your sacrifice. It’s not fair, right or legal. Let’s get you up to speed a little bit on your options and the law.
Should I just file a complaint with
the United States Department of Labor?
No, not without checking with a Texas board-certified employee rights attorney first. The U.S. DOL can be helpful in some situations, but in many situations that we’ve seen, they don’t do a good job of scrutinizing the way that the employer is calculating the back unpaid overtime wages. In essence, they allow the fox who is guarding the henhouse to report how many chickens are inside. Yeah, right. The employer then has employees sign a DOL-approved release of their overtime claims in exchange for what is often a measly check that leaves a lot of that overtime pay in the employer’s pocket. And if you talk to an attorney later on about the unpaid overtime – they may not be able to help you at that point. That ship may have already sailed after the waiver.
In addition, a board-certified employee rights attorneys can and will push to get a court to double your unpaid overtime pay. The DOL doesn’t do that as a matter of course. Who doesn’t want double their pay? Not only does it compensate you for going without your rightful pay all this time, it holds the employer even more accountable and punishes them for failing to follow the law. What you do now could help employees at the company in the future. So talk to a board-certified employee rights attorney first – before going to the U.S. Department of Labor. The overtime law allows the attorney to take your case with no out-of-pocket cost to you. Meaning, you would never have to pay your attorney anything out of your pocket to handle your case. The attorney’s fees come from a portion of the recovery. Plus the law allows you to recover some or all of those attorney costs.
What about filing a
Texas Workforce Commission Wage Claim?
In the vast majority of cases, a TWC Wage Claim is not the best way to handle an overtime claim – or any meaningful amount of money, for that matter. Especially if that overtime claim is for, say, more than $1,000. The problems with a TWC wage claim are even worse than those for an overtime complaint with the DOL. You won’t get doubling of your overtime pay through the TWC. You can only claim unpaid wages up to 180 days prior to the day you file your TWC wage claim (filing a lawsuit in court allows you up to two years, and potentially three years, of back overtime wages). Furthermore, the TWC hearing officers are often poorly equipped, compared to courts, to figure out when the law says you should have received overtime pay. There have been many bad TWC overtime decisions. And, at least under current Texas law, if you let the TWC make a bad decision, and let that decision become final at the TWC, you may have just waived your right to pursue the same claim in a court.
If you haven’t filed a TWC Wage Claim for overtime pay yet, give us at the O’Brien Law Firm a chance to give you an honest evaluation of whether that’s your best option. And if you’re in the middle of a TWC Wage Claim for overtime pay, let’s find out whether it might be a better idea for you to jump out of your Wage Claim process and seek the overtime pay (and perhaps doubling of that pay) in court. If your TWC Wage Claim has not become final, you may be able to withdraw that Wage Claim and go the court route. But, to be clear, don’t try anything like that without the advice of a Texas board-certified employee rights attorney.
The Fair Labor Standards Act
The federal law that gives many workers a right to overtime pay.
The Fair Labor Standards Act (FLSA) was an important piece of legislation passed in 1938 to protect the principle of fair pay for workers doing a substantial amount of work during a week. It is the federal law that governs payment of the required minimum wage and payments for overtime. The FLSA requires that most employees be paid time-and-a-half for all hours worked over 40 hours in a “work week,” which is a defined 7-day period.
Here are some examples of how employers violate this law:
- Simply not paying you time-and-a-half pay when you go over 40 hours in a workweek.
- They try to get employees to work off-the-clock to squeeze in extra production “for free.”
- Require you to clock out for lunch, while knowing or being in a position to know that you are still working while eating at your desk.
- Require or knowingly allow you to take work home to work on it in the evening and weekends.
- Not paying you as you drive from work location to work location during the day.
- Not paying you for mandatory events, like training sessions and meetings.
- Paying you a set salary for all of your work, including work over 40 hours, when you have to be paid overtime pay due to the nature of your job duties. (In other words, misclassifying you as “exempt” from the overtime laws when you aren’t exempt.)
- Classifying you as an independent contractor (1099 pay) when you are actually an employee by law. Therefore, when the employer only pays you the straight hourly contract rate over 40 hours, you are being denied your rightful overtime pay for the missing half-time pay. (And just because the employer calls you an “independent contractor” doesn’t mean the law will agree. Talk to an attorney.)
- Giving you “compensatory time” (a.k.a. comp time, or time off) to make up for overtime hours that you’ve put in. (Only governmental employers can do this. If it’s a private company, they are required to compensate your overtime hours with money, not time off.)
Some occupations have a higher incidence of overtime violations in Austin and Dallas, such as:
- Oilfield workers
- Nursing homes and skilled nursing facilities
- Hotels and motels
- Call centers and customer service facilities
- Daycares and pre-schools
- Convenience stores
- Office administrative staff
- Paralegals (usually required to be paid overtime pay in Texas)
- Nursing homes
- Security guards
- Grocery stores
- Janitorial contracting services
- Construction workers
- Doctor’s offices, healthcare providers
- Retail stores
- What can an employer do to me if I complain about overtime?
By law, the employer can’t take any adverse employment action – termination, demotion, false poor performance reviews, blackballing, etc., because you’ve complained about your unpaid overtime.
- Do I have to wait until I quit this job before I claim overtime?
The law protects you from retaliation for making or filing complaints about your unpaid overtime pay. However, suing your employer while you’re still employed can be an awkward situation, to say the least. Furthermore, even if you can sue the employer for a retaliatory firing if it happens, you’re probably better off having that job than being in a lawsuit over it. So if you’re still at the job where you have unpaid overtime, talk to a board-certified employee rights attorney about it to determine the best approach.
As you can see from O’Brien Law Firm’s mission, we are here to improve your life. Therefore, we are strategic and thoughtful on how we approach this situation. Part of the approach may depend on how long you’ve been going without being properly paid. If it’s close to or more than two years, you may need to file your claim anyway or otherwise potentially begin losing that unpaid overtime pay forever. It depends – let’s talk. Just know you’re in good hands when you trust us with your case.
- How far into the past can my claim for unpaid overtime go?
The law says that you can always claim up to two years of past unpaid overtime pay. If the employer’s failure to pay overtime under the law is determined to be “willful” – generally meaning that the employer knew or should have known they were violating the overtime laws – then you can claim an additional 3rd year of overtime pay. Keep in mind, though, that the clock only stops running when you actually filed your claim. So if you have unpaid overtime pay going back two and perhaps three years, every week that you fail to take action may be a week of unpaid overtime pay that is lost forever.
- Sometimes I’d work less than 40 hours but some of that would still be off-the-clock work. Can I claim that as well?
Yes. It’s not unpaid overtime pay, but as part of an overtime lawsuit, the O’Brien Law Firm also often makes additional claims for unpaid wages that aren’t otherwise covered under the overtime laws. However, in Texas, those unpaid wages that aren’t unpaid overtime aren’t subject to potential doubling by the court. But it’s still your money that belongs in your pocket – not your employer’s pocket.
- I sometimes work more than 8 hours in a day. Is that overtime?
Not in Texas. In Texas, only hours over 40 in a work week can create overtime pay obligations. However, some other states do have different rules on 8-hour workdays.
- I was paid a salary. Can I still be entitled to overtime pay?
Absolutely. For some types of occupations and work, an employer cannot pay you salary to compensate you with one rate for all hours of work. It depends very much on specifically what you do in your job. Sometimes even someone in a “supervisor” position may be entitled to overtime if the “supervising” is a relatively unimportant function of their job, and their primary job duties are ones that would entitled them to overtime. The more routine and manual your job duties, and the less independent discretion and decision-making responsibility you have in your job, the more likely that your job is non-exempt – meaning, not exempt from the requirement that the employer pay you overtime for hours over 40. Talk a lawyer.
- How much does a lawyer cost? I don’t have a lot of money.
You don’t need money to hire our firm to handle overtime claims. We take these cases on a contingency basis, meaning, we only recover a % of your recovery. Furthermore, the overtime law requires the employer to reimburse you for the amount of time your attorney has put into the case to recover your overtime, if you’re successful in your claim. Our firm typically recovers between 120%-200% of your unpaid overtime that goes straight into your pocket.
- Will I have to go to court?
It’s always possible, but it’s relatively infrequent in the cases this firm has handled. The fact is, in most cases, the employer recognizes their liability and the potential cost of paying both their own attorney as well as yours to fight what may be a losing battle. So they settle. That’s not all of the time, and employers have a right to contest the claim, but that’s certainly our experience in a majority of cases that we’ve handled.
- What if I wasn’t keeping track of my time? Can I still have a claim?
Absolutely. If you are a “non-exempt” employee, federal law makes it your employer’s responsibility to track all time that you worked. If the employer did not do so – which is common, especially when the employee is misclassified as an exempt, salaried employee – then courts will normally accept your good faith estimate of time that you worked. We have handled many cases solely on the basis of our clients’ estimates of their overtime work.
Contact our employment lawyers
If you believe that you may have been wrongly denied overtime pay, call the O’Brien Law Firm NOW at (512) 410-1960, set up a FREE phone consultation or fill out the form below so that we can get to know you and your situation. If we take your case, you never have to pay us anything from your pocket – all attorney fees come from the monetary recovery and/or the employer. Your information is confidential and the form submission goes directly to attorney Kerry O’Brien for his review.
In a two-day trial to the bench on September 11-12, 2017, the O’Brien Law Firm presented its client’s case in a federal trial to the bench in Civil Action No. 4:16-cv-00415, in the Southern District of Texas – Houston Division. The defendants are the legal entities and owners for a chain of car stereo retail stores […]Read More