Legal Question- Labor law/TX

[Tylerocks 2,553]

Any labor lawyers or general know-it-alls that could help?

I'm sure it is (legal) otherwise I don't think the company would go this route...BUT

In Texas, when it comes to OT, can an eligible employee be paid in "Comp time" as opposed to OT time and a half pay?

 

Ex:  Employee works 8 hours on a saturday, bringing his weekly hours worked to 48.  Instead of making a little extra scratch for that, he's given Monday off on "Comp Time"

[horn4life 3,761]

Not legal- I do not think as a NON- lawyer.  But worth losing a job over? Not sure on that.

https://www.twc.texas.gov/news/efte/otpay_conclusions.html#:~:text=If the regular hours %3D 40,for all hours over 40.

[Paper_jam 831]

What type of work does this employee perform? The overtime rules generally depend on whether a job is "FLSA exempt" or not. Making that determination can be complex. Employees who are paid hourly and are non-supervisory are usually entitled to paid overtime (time and a half). Salaried executive or professional employees are typically FLSA exempt and can be "paid" in comp time, etc.

(This is a pretty complex area and I'm not a lawyer.)

Edit: below is a link describing in more detail what kinds of jobs are exempt from the FLSA overtime rules:

https://www.thebalancecareers.com/what-is-an-exempt-employee-525701

Edited December 31, 2020 by Paper_jam

[Gil Bang 25,960]

We've got 7500 lawyers on this board, and two non-lawyers try to answer the question.

[TwiceHorn 31,488]

Not my area and no extracurricular knowlege.  Paper_jam is correct about exempt/non-exempt classification and entitlement to overtime.

Assuming that you are entitled to overtime, which is measured on a 40-hour week, I would think that paid time off in another week is not an adequate substitute. 

[Bevo 13,577]

5 hours ago, TwiceHorn said:

Not my area and no extracurricular knowlege.  Paper_jam is correct about exempt/non-exempt classification and entitlement to overtime.

Assuming that you are entitled to overtime, which is measured on a 40-hour week, I would think that paid time off in another week is not an adequate substitute. 

It's not. We work a 36 hour work week. I wanted to help some employees out by working an extra day every other week. They wanted time and a half so I spoke with a labor attorney who is a friend. Long story short, we kept it at 36 which is what I preferred anyway.

Edited January 1, 2021 by Bevo

[woohorn 1,131]

We've got 7500 lawyers on this board, and two non-lawyers try to answer the question.

Yeah but employment lawyers are mostly chicks. How many of those post here?

[Bevo 13,577]

16 minutes ago, woohorn said:

6 hours ago, Gil Bang said:

We've got 7500 lawyers on this board, and two non-lawyers try to answer the question.

Yeah but employment lawyers are mostly chicks. How many of those post here?

Is that true and why? My friend to whom I was earlier referring is a chick.

[woohorn 1,131]

Is that true and why? My friend to whom I was earlier referring is a chick.

Yes. It's easy.

[elfenix 34,266]

On 1/1/2021 at 12:46 AM, woohorn said:

On 12/31/2020 at 6:09 PM, Gil Bang said:

We've got 7500 lawyers on this board, and two non-lawyers try to answer the question.

Yeah but employment lawyers are mostly chicks. How many of those post here?

troph is both a chick and a lawyer. 

[former alkie 72]

I'm not an attorney, but been dealing with this issue for a very long time.

I work in a white collar environment, and employees are either "exempt," or "non-exempt."   Supervisors and above are exempt, and everyone else in non-exempt.

Exempt employees are strict salaried, and will make the same salary if they work 35 hours, or 50 hours, etc.....however, I do want to say that if a salaried employee abuses this, and consistently fails to work 40 hours, this will absolutely become an issue with them.

Non-exempt will absolutely be paid time and a half, if they exceed 40 hours, whether it was approved or not......however, this will become an issue with them, if they worked OT,  without prior approval from a supervisor or above.

Lastly, as far as designated holidays.....if a non-exempt employee works on a holiday, they will be paid time and a half for each hour.......but, as stated earlier, this will become an issue, if they worked it, without prior approval from supervisor or above.

If an exempt employee works on a designated holiday, he/she and their direct manager will figure out a fair way to work in some comp time.......never a big deal.

There's really no valid reasons for employees, at any level, to get all pissy about stuff like this.....unless of course they're being taken advantage of.

[Tylerocks 2,553]

Sorry, just checking back in here.

This is a regular "office" type job. Employees are salaried with a bonus/commission structure in place.  OT was a big part of overall compensation

OT pay has been the norm for as long as I've been there (almost 20 years).  Anything over 40 was timed a half until December when that was changed.

 

 

[77horn 216]

Not a lawyer, but I worked for an oil company that went from 40 hour weeks to a 9-80 schedule.  So  you'd work alternating 36 hours and 44 hour weeks.  To get around the O, they got creative on defining the work week.  The work week was defined as Noon Friday to Noon the next Friday.

[troph 24,810]

On 1/2/2021 at 1:21 AM, elfenix said:

troph is both a chick and a lawyer. 

But not a labor lawyer.  I do employee matters to a quite an extent as a corporate lawyer but more executive employment with non-competes, misappropriation of trade secrets, executive comp and employment agreement negotiations, indemnification claims and contracts, fiduciary stuff, force outs, stock and equity comp, 409A issues, 280G, severance negotiations, breach of contract, but get into the heavy regulation like EEOC claims or in this case FLSA and I’m not your huckleberry. Most executive comp doesn’t pick up those issues, FLSA for example - executives are exempt. 

Ironically, my go to labor lawyer is a dude. I will say exempt and non-exempt isn’t as easy as it sounds in the middle, on the extremes hourly labor and C-suite execs it can be clear it applies or doesn’t.
 

 

Edited January 4, 2021 by troph

[NeverMarryAStripper 21,907]

Hiring football coaches who are exempt from winning anything of importance has certainly been easy

[troph 24,810]

Oh I forgot to include with my advert, if you need my help call 777-7777, that’s 777-7777, again call 777-7777.

[SquishMitten 10,408]

On 1/3/2021 at 10:30 AM, Tylerocks said:

Sorry, just checking back in here.

This is a regular "office" type job. Employees are salaried with a bonus/commission structure in place.  OT was a big part of overall compensation

OT pay has been the norm for as long as I've been there (almost 20 years).  Anything over 40 was timed a half until December when that was changed.

I believe if their salary is over a certain amount (looks like $35,568 for 2020), they are also considered exempt. This came up with a few of our employees in 2016 when they attempted to raise the minimum to $47,476. With bonuses, everyone was well above the threshold, but you can't count bonuses. Their base salary has to exceed the minimum amount so we began restructuring everybody's comp plan. If the employee in your scenario makes over $35,568 in base salary, then it seems like your company has a great policy in place. Not as good as paying time and a half, but it doesn't look like they have to do anything at all. Honestly though, isn't that how a lot of companies are? Unless it's busy season, I'll let my employees take time off and I won't make them use PTO if they make it up over the next week or so. If they want to put in a full day of work on Saturday, then by all means take off Monday instead. 

[Tylerocks 2,553]

good info.

The base salaries are below $35,568.  More like between $25-$30K

Folks in these positions counted on OT to get them a more livable wage..base salaries are low given that they are under the "sales"umbrella, so they can earn commission and bonus.

Bonus/Commission and OT made up between 40-50% of their compensation.

given the financial impact of Covid, not being able to make up any lost money via OT is a kick in the dick.

[beer 3,220]

I'm a fucking physician, so I feel the need to weigh in. That whole calling everyone "exempt" but they do fuck-all for independent work, supervising, or really any decisions whatsoever seems to be the norm.  They guy mowing my lawn should not qualify as salaried in any world. 

[SquishMitten 10,408]

30 minutes ago, Tylerocks said:

good info.

The base salaries are below $35,568.  More like between $25-$30K

Folks in these positions counted on OT to get them a more livable wage..base salaries are low given that they are under the "sales"umbrella, so they can earn commission and bonus.

Bonus/Commission and OT made up between 40-50% of their compensation.

given the financial impact of Covid, not being able to make up any lost money via OT is a kick in the dick.

Then I believe they are entitled to overtime. It's possible someone at the company didn't realize that bonus/commission can't be included in the calculation (unless that has changed since we dealt with it a few years ago). You can always send an anonymous letter to HR if you don't want it coming back on you, but as an employer that's a mistake I would like brought to my attention before I got sued. And if it's not a mistake and they've found another way to legally justify it, I'd imagine they'll send out a memo. 

[BearSchlong 8,098]

Wait, salespeople getting paid for OT and commissions/bonuses making 5 figures?

What are they selling, cable TV?  Newspaper subscriptions?

Sounds like they should be getting OT.

My wife works for the state and is salaried but they give her what sounds like comp time in lieu of OT pay, in that she can bank it and use it instead of PTO or Sick time.

Plus, LBJ's birthday as a paid holiday.

Edited January 4, 2021 by BearSchlong

[NotActuallyALonghorn 4,976]

I was under the impression that outside sales falls under the exempt category. Or is it still a requirement for the base salary to be above the threshold as well?

[Nueces River Rat 5,539]

On 1/2/2021 at 10:43 AM, former alkie said:

I'm not an attorney, but been dealing with this issue for a very long time.

I work in a white collar environment, and employees are either "exempt," or "non-exempt."   Supervisors and above are exempt, and everyone else in non-exempt.

Exempt employees are strict salaried, and will make the same salary if they work 35 hours, or 50 hours, etc.....however, I do want to say that if a salaried employee abuses this, and consistently fails to work 40 hours, this will absolutely become an issue with them.

Non-exempt will absolutely be paid time and a half, if they exceed 40 hours, whether it was approved or not......however, this will become an issue with them, if they worked OT,  without prior approval from a supervisor or above.

Lastly, as far as designated holidays.....if a non-exempt employee works on a holiday, they will be paid time and a half for each hour.......but, as stated earlier, this will become an issue, if they worked it, without prior approval from supervisor or above.

If an exempt employee works on a designated holiday, he/she and their direct manager will figure out a fair way to work in some comp time.......never a big deal.

There's really no valid reasons for employees, at any level, to get all pissy about stuff like this.....unless of course they're being taken advantage of.

This was the way it was in my former business where we had 45 employees at one time before we sold it.

Supervisors or Professionals with the certification for the job they were doing were paid salary, but for hours worked over and beyond what was expected (40 -50+ hours per week) , we often gave them flex time or extra days off.  Such as if one was assigned "on call" for a week and it carried into the weekend, we'd give them the option to take that Monday off or take Friday or Monday off the following weekend.   Or bank it for a later day, but they still had to use it within a calendar year.

Hourly we paid time and half.  It was just not worth the headaches of risking a TWC or DOL audit and in our industry (healthcare) back then, the DOL was really on the hunt and hit some providers pretty hard with penalties and back pay because they designated people as salary who should have been hourly and a few other oversights.

[Nueces River Rat 5,539]

3 hours ago, NotActuallyALonghorn said:

I was under the impression that outside sales falls under the exempt category. Or is it still a requirement for the base salary to be above the threshold as well?

I think they can be 100% commission, but must be 1099? 

[DanRydell 799]

I was under the impression that outside sales falls under the exempt category. Or is it still a requirement for the base salary to be above the threshold as well?

Outside sales employees are exempt but to fall under the exemption, they have to work outside the office. Basically they need to be out in the field doing sales, not at a desk.

As to the OPs question, not enough info to know whether the employees are exempt but if not, comp time is not a substitute for OT pay.