Houston Wage and Hour Lawyers for Employees and Employers

At Wyly & Cook, we help employees and employers find answers to issues regarding payment rules. People go to work every day to support their families, and they deserve to get paid fairly for each hour they work. On the other hand, business owners need to clearly understand how to comply with the law and avoid costly mistakes. Wage and hour cases matter to us because they directly affect people’s livelihoods. When workers are underpaid, the ripple effect is seen in their households and communities. Understanding wage and hour law can benefit everyone.

What is Wage and Hour Law?

Wage and hour law is based upon the Fair Labor Standards Act (FLSA). The FLSA sets the federal minimum wage at $7.25 per hour for most employees and requires that workers be paid at least one and one-half times their regular hourly rate for any hours worked beyond forty in a workweek. Additionally, employers must maintain accurate records of hours worked and wages paid by their employees.

Some employees are not subject to overtime requirements, such as executive, administrative, and professional employees, but employers must meet very specific salary and duty tests to assert this exemption. Even if an employer pays an employee a salary, the employee may still be eligible for overtime if their job responsibilities include a lot of physical activity or are similar to the job responsibilities of hourly employees. We tell our clients to always assume that overtime is owed until they confirm otherwise. While paying overtime can appear to be expensive, the cost of violating overtime provisions can be significantly greater when liquidated damages and attorneys’ fees are included.

Texas follows federal wage and hour standards because the State has not established a higher minimum wage. The Texas Workforce Commission is responsible for enforcing the Texas Payday Law and ensuring that workers receive their wages, and provides a streamlined method for workers to complain if they do not. As such, we often assist our clients in filing complaints with the Texas Workforce Commission or responding to investigations conducted by the Texas Workforce Commission. Most claims are resolved promptly if clear and relevant evidence is presented.

Common Wage and Hour Violations

Unpaid Overtime and Misclassification

By far the most common issue we deal with is unpaid overtime. Many employers mistakenly believe that paying a salary to an employee exempts that employee from overtime. That is not true. Whether or not an employee receives a salary and what the employee does during the course of their employment determines whether or not that employee is entitled to overtime. If you perform a lot of physical labor in the course of your employment, or if you follow orders from a supervisor as if you were an hourly employee, you are probably entitled to overtime even if you receive a salary.

We have helped numerous clients who were improperly designated as “managers” or as “independent contractors.” Independent contractors are individuals who run their own businesses and have opportunities to realize profits and losses. They also determine how they will complete their projects. Employees do not. If a worker is improperly designated as a contractor, he/she/they may lose out on protections such as overtime, minimum wage, and other benefits. To prove that a worker was employed rather than a contractor, we typically collect evidence of control, such as work schedules, company rules, and equipment provided by the employer. We also provide assistance to business owners in properly designating workers and avoiding the consequences of incorrectly designating workers.

Unpaid Wages and Time Tracking Errors

Employers occasionally fail to pay workers for all the hours that they worked. Examples of hours that employers fail to pay include time spent getting ready for a shift, cleaning up after a shift, or being “on-call.” Errors occur when workers are instructed to clock out and continue working, or when there is no reliable means of tracking hours worked. When employers fail to accurately record hours worked, workers are allowed to estimate the number of hours they worked. We recommend that workers document their hours worked by keeping personal records of their hours, including the date(s) and time(s) worked and task(s) completed. Pay stubs, emails, and text messages can serve as supporting documentation.

Break and Rest Period Issues

While federal law does not require employers to provide break periods to employees, employers who do provide break periods must pay employees for any breaks lasting 20 minutes or less, since these are considered part of the employee’s worktime. An employer is permitted to provide unpaid meal breaks as long as the employee is entirely relieved of duty during that time. Many of our clients have complained to us about being asked to clock out for meals, yet were expected to answer phone calls or assist customers during that time. Since our clients were not entirely relieved of their duties, we were able to recover wages for the time they spent working during those meal periods. Similarly, if your employer asks you to check and/or respond to email messages from home, that time is considered part of your work time.

Independent Contractor Classification

As more and more individuals enter into freelance or contract arrangements with employers, there is increasing confusion regarding whether workers are independent contractors or employees. Contractors are responsible for establishing their own schedules, choosing their clients, and providing their own tools. Employees, on the other hand, adhere to a company’s schedule, utilize equipment provided by the company, and rely on the company for consistent employment. Misclassifying employees as contractors allows employers to circumvent minimum wage, overtime, and payroll tax obligations. When we represent workers, we examine factors such as: who controls the work; who supplies the tools; how permanent is the relationship between the parties; and does the worker have a genuine opportunity to earn a profit/loss? Businesses that are unsure as to how to classify workers should seek advice from an attorney prior to making that determination.

Investigations and Lawsuits

The Wage and Hour Division of the U.S. Department of Labor is responsible for investigating and enforcing compliance with federal wage and hour laws. Investigators for the Wage and Hour Division review payroll records, interview employees, and determine whether wage and hour laws were violated. Complaints from employees, media reports, or random audits can trigger investigations. When we represent employers in an investigation, we ensure that employers provide complete and accurate records and cooperate with investigators. When we represent employees, we ensure that their complaints are thoroughly documented and supported by evidence.

Where unpaid wages are significant or an employer fails to remedy a wage and hour law violation, a lawsuit may become necessary. Employees may bring individual lawsuits or participate in a collective action (similar to a class-action), where multiple employees with similar wage and hour claims opt in and share in any recovery. Collective actions may result in back wages, liquidated damages (which can be equal to the amount of unpaid wages), and attorneys’ fees. For willful wage and hour law violations, employees may recover wages for a period of three years rather than the standard two-year statute of limitations.

How to Avoid Wage and Hour Problems

It is easier and less expensive to prevent wage and hour law violations than to fight them after they occur. Employers should create written policies concerning pay, overtime eligibility, time tracking, and breaks, and educate their managers regarding the application of those policies. Employers can also implement electronic time tracking systems and audit those systems to identify potential wage and hour law issues before they arise.

Employees can also protect themselves by documenting their hours worked, either by keeping personal records or by monitoring their pay stubs for accuracy. If an employee believes that they have not been paid correctly, documenting the discrepancy and contacting an attorney promptly can greatly increase the chances of resolving the dispute quickly and obtaining a positive outcome.

Why Choose Wyly & Cook

Wyly & Cook has recovered unpaid wages and overtime for numerous clients in a variety of different industries. We have extensive experience with Texas wage and hour laws. Wyly & Cook offers complimentary consultations and represents its clients on a contingent fee basis, meaning that the client will only be charged for legal services if the client recovers money as a result of the representation.

One example of the types of cases we handle involves a worker who contacted us after being classified as a manager despite spending almost all of his workday performing the same type of work as hourly employees. We established that his duties did not qualify for the exemption and were able to recover substantial back pay and liquidated damages on his behalf. Another example includes a group of delivery drivers who were treated as independent contractors, although the company controlled their work schedules and routes. We filed a collective action on their behalf and recovered overtime wages for all of the participants.

If you believe you have not received fair wages, or if you wish to ensure that your business is complying with wage and hour laws, please contact Wyly & Cook today. Contact information for Wyly & Cook includes calling us at (713) 766-0719 or using the contact page on our website to send us a message requesting a consultation.