Articles Posted in Wage and Hour

clockSometimes Texas workers believe that they must be as helpful as possible to an employer, even if it means working off the clock. For example, sometimes workers come in early to help an employer set up for that day’s work, but they don’t punch in for that period. Or, sometimes, an employee participates in work during lunch hours that isn’t counted toward their work hours for that week. Under the Fair Labor Standards Act (FLSA), work that is not counted toward overtime or goes uncompensated is illegal.

The FLSA requires that nonexempt employees be paid overtime if they work more than 40 hours per week for all work done. Most employees are considered nonexempt and are covered by the FLSA for the purposes of overtime, as well as the minimum wage. Exempt employees are those who are considered professional, administrative, or executive, or are within certain industries such as commission-based sales.

All work for an employer should be on the clock. If an employer requires or allows employees to do any work for it without compensating the employee and counting it toward weekly hours for the purposes of calculating overtime, it is “off the clock.” What counts as work? Whenever an employee engages in work that’s not requested but allowed, such as helping a colleague or coming in early to set up, this is work that is completed and should still be compensated.

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lunchMany workers do not realize that they do not need to go off the clock for short lunch breaks or snacks. If you take yourself off the clock for breaks under 30 minutes, you may not be getting the wages to which you’re entitled.

There are many employment practices not regulated by the federal Fair Labor Standards Act (FLSA). For example, there’s no requirement under the FLSA that you get vacation pay, meal periods, holidays off, premium compensation for working weekends or holidays, pay raises, a reason to be discharged, or pay stubs. There are no collection procedures in place if you are promised wages or due commissions that are greater than what’s required. Moreover, there are no limitations about how many hours in a single day you can be scheduled to work if you are at least 16 years old. Generally, these issues are agreed upon between an employer and an employee.

However, rest periods or short lunch breaks are quite common in all workplaces. There is no requirement that a lunch or coffee break be given under federal law. However, if your employer chooses to offer you a short break, these breaks are considered compensable hours that are included when determining overtime and minimum wage, and they are regulated under the FLSA. Any rest period of short duration (such as one that is 20 minutes or less) is supposed to be paid as working time and included when calculating overtime.

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computerThe Fair Labor Standards Act (FLSA) is the federal law that regulates minimum wage and overtime, including how these issues should be handled in connection with a summer internship. Employment is defined broadly such that anyone who is suffered or permitted to work is employed. The United States Department of Labor enforces the FLSA, and it uses a six-part test to decide whether you should be paid minimum wage for your summer internship.

An unpaid internship is only appropriate under the six-part test when:  (1) the intern doesn’t displace a paid employee, (2) the internship is for the intern’s benefit, (3) the internship is similar to training that would be provided in school, (4) the employer doesn’t benefit from the intern’s work and sometimes may be disrupted by what the intern is doing, (5) the intern isn’t promised a job once the internship is over, and (6) both the intern and the employer understand that the job is an unpaid position.

If you are closely supervised by existing staff and are not “seasonal help,” you probably didn’t displace a paid employee. However, if your employer would have hired more people to do the work you’re doing if you hadn’t joined as an intern, you are likely entitled to FLSA pay.

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The eight-hour workday was developed during the Industrial Revolution so that workers doing manual labor in a factory would not have to work as many hours. Prior to that, in the late 18th century, factory workers worked 10-16 hours days to keep factories running 24/7. A campaign was started to have people work no more than eight hours in a day so that they would have eight hours of work, eight hours of recreation, and eight hours of rest. The campaign was successful.

The goal was humane, but it doesn’t take into account our modern situation in which employees who work steadily for hours on end, sometimes for 10 to 12 hours in a day, are assumed to be more productive than employees who take breaks. According to the Bureau of Labor Statistics, the average American actually works 8.8 hours in a day. This is more time than the average worker spends doing anything else.

However, one study shows that workers who take brief breaks are more productive than those who keep working continuously for more hours, regardless of the number of hours they were working overall. Ideally, according to that study, there is an hour of uninterrupted work and then a break of about 15-20 minutes.

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restaurantThe Texas Minimum Wage Act establishes minimum wage for nonexempt employees in Texas. It has adopted the federal minimum wage, and currently minimum wage is $7.25 an hour. This is too low for anybody to live on, and it is shocking when you consider how much exempt employees such as CEOs of corporations and professionals can make. Since the federal minimum wage hasn’t been changed since 2009, it has not kept pace with inflation, and what that $7.25 minimum wage represents is much less than what it previously meant.

The Texas Minimum Wage Act also provides for agricultural piece rate workers, exempts certain employers, allows employers to count trips and the value of meals and lodging toward their employees’ minimum wage, and specifies civil remedies for violations.

With specified restrictions, employers may use an employee’s tips and the value of meals and lodging toward the minimum wage that must be paid. The law also specifies that those who live at the job site for on-call time do not need to be paid in addition to their assigned working time. Certain other employees who have productivity impairments, have mental health or development problems, or are of a certain age may also be paid sub-minimum wage.

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Mt. RushmoreBefore minimum wage and overtime were instituted, the average American worker worked brutal hours. Workers were easily exploited by their wealthier employers, which forced them to work around the clock just to be able to survive, living paycheck to paycheck and not making much more than what it took to feed their families.

In 1938, President Franklin D. Roosevelt signed a number of bills, one of which was the Fair Labor Standards Act of 1938 (FLSA). The FLSA applied to industries that together held about one-fifth of the labor force, and, among other things, it set a minimum wage at 25 cents for those industries.

Importantly, it also introduced overtime regulations that guaranteed all nonexempt workers be paid time and a half for hours worked over 40 hours a week. These rules were intended to address the exploitation of workers and the lack of jobs.

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