Texas

Labor Compliance Guide

Hours & Pay Regulations

Normal Working Hours

The Fair Labor Standards Act defines the workweek as a fixed and recurring period of 168 hours comprised of seven consecutive 24-hour periods that do not need to coincide with the calendar week. It is adjustable only if the change is designed to be permanent. Each week is considered on its own for purposes of calculating overtime. The hours of two or more weeks may not be averaged.

 

Under state law, an employer may not require any employee to work seven consecutive days in a retail establishment and may not deny an employee at least 24 consecutive hours off for rest or worship in each seven-day period. The time off must be in addition to any regular periods of rest allowed during each work day.

 

State law also requires that an employer must accommodate an employee’s religious beliefs and practices unless the employer can show that to do so would constitute an undue business hardship. An employer also may not require an employee to work during a period the employee requests to be off to attend one regular worship service a week of the employee’s religion. This does not apply to employees who are part-time, working less than 30 hours or less in a calendar week.

 

Time Clock Rounding

Many employers do not pay employees according to the exact number of hours and minutes they work, but rather utilize some sort of “rounding” or “roundoff” system whereby a certain interval is set that serves as the minimum block of time that will be recognized as a unit of time worked or not worked. Time missed or worked within that interval will not be deducted from or added to the time worked, whereas time missed or worked outside that interval will result in that interval being deducted from or added to the time worked.

 

Long Punching of Hours

Where time records show elapsed time greater than the hours actually worked because of reasons such as employees choosing to enter their workplaces before actual starting time or to remain after their actual quitting time, the Compliance Officer shall determine whether any time is actually worked in these intervals. If an employee came in early for personal convenience and did not work prior to the scheduled beginning time, a recording of the fact that the employee worked, for example, 8 hours that day is all that is required.

 

Sleeping Time

If an employee is on a shift lasting less than 24 hours and is required to be on duty during such a shift, she will be considered as working during the entire time, even if permitted to sleep during such time or engage in personal activities, such as eating meals, when not busy.

 

If an employee is on duty for a shift of 24 hours or more, the employer and employee may agree to exclude from hours worked the time spent in meal breaks and in “bona fide regularly scheduled sleeping periods”, but there is a limit of eight hours on the amount of time that can be excluded as sleeping time.

Overtime

Texas has no general provision governing overtime pay, but most employees would be subject to the federal Fair Labor Standards Act, which requires that all work in excess of 40 hours per week be paid at a rate of one-and-one-half times the employee’s regular rate of pay.

 

A retail employer must allow full-time employees (defined in the following statute as those who work more than 30 hours in a week) at least one 24-hour period off in seven, i.e., each week, the employee must be allowed to have a day off.

Breaks

Rest or coffee breaks, defined as 20 minutes or less, are compensable hours worked since they are regarded as being for the benefit of both the employer and the employee. Smoking breaks are not required under Texas or federal law, but if a company allows such breaks, they count as rest breaks. Companies can adopt whatever policies they want to with regards to smoking breaks.

 

No matter how many rest/coffee/smoking breaks an employee takes, they are compensable, even if the employee took more breaks than allowed. Unlike ordinary coffee or rest breaks, do not need to be compensated, so the company can have a policy requiring employees to clock out and then back in for such breaks.

 

Under state law, an employer may not require any employee to work seven consecutive days in a retail establishment and may not deny an employee at least 24 consecutive hours off for rest or worship in each seven-day period. The time off must be in addition to any regular periods of rest allowed during each work day.

 

State law also requires that an employer must accommodate an employee’s religious beliefs and practices unless the employer can show that to do so would constitute an undue business hardship. An employer also may not require an employee to work during a period the employee requests to be off to attend one regular worship service a week of the employee’s religion. This does not apply to employees who are part-time, working less than 30 hours or less in a calendar week.

 

Breast Feeding Break

The federal statute indicates that the break must be allowed each time such employee has the need to express the milk’ states that employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk, as well as the duration of each break, will likely vary. The burden of challenging how much time a nursing mother needs for such a purpose would be on the employer. For most people, the frequency of such breaks would decline in the natural course of events, so they should not be too difficult to accommodate. A nursing mom has the right to a private, non-restroom place where the employee will not be disturbed while expressing the milk.

 

Employees who use their regular paid rest breaks for nursing/expression of breast milk would be paid for those breaks just like any other employees. In terms of total work time for the shift, the employee may need to either arrive earlier or stay longer to work a certain number of hours, or else experience a slight reduction in pay due to having unpaid nursing/breast-pumping breaks during the day and not being able to arrive earlier or stay later to make up the time.

Annual Leave

No Texas or federal law requires private-sector employers to provide paid or unpaid annual leave of any kind, although some amount of unpaid leave may be necessary as a reasonable accommodation in the event of a disability, pregnancy, or other condition protected under specific statutes.

Minimum Wage

The state minimum wage rate matches the federal minimum wage, currently $7.25 per hour.

Tips & Gratuities

Tipped employees must be paid the cash wage specified in the federal law ($2.13 per hour).

Meal Breaks

Meal breaks are not compensable, as long as they are at least 30 minutes in length and the employee is completely relieved from duty for the purpose of eating a regular meal. Shorter meal breaks may be considered valid under special circumstances. Such breaks are a matter of company policy. Since they are optional, an employer can allow meal breaks, or not. If meal breaks are allowed, the employer can impose conditions on them, such as when they occur, how long they are, where they may or may not be taken, and whether any particular consumables are disallowed (such as alcoholic beverages).

 

The most frequent pitfall for employers is thinking that employees have true meal breaks if they are allowed to eat at their desks while answering phones, opening mail, sorting files, and so on. Such duties performed while trying to eat will render the time spent during the meal break compensable. While employers should not insist that an employee actually eat something during a meal break, they may prohibit any kind of work during such time and may require employees to leave their desks or workstations during the allotted meal break times. Employers may control unauthorized work during meal breaks, or excessive or unauthorized breaks, by the disciplinary process.

Special Leave

Unpaid Leave
Employees may be eligible to take unpaid, job-protected, leave under the Family Medical Leave Act (“FMLA”). Please refer to main United States page for further details on this Federal law.

 

Limitation on Leave of Absence
With the exception of leaves of absence for military duty, no leave of absence, by itself or in combination with other periods of leave, may last longer than six months. Any employee who for any reason or combination of reasons misses a total of six months of work in a twelve-month period, or a total of nine months of work in an eighteen-month period, will be separated from employment due to unavailability for work, subject to any reasonable accommodation duties the company may have under the ADA or similar law. Any employee so separated will be eligible for rehire and will be able to apply for any vacancies that may exist at any given time, depending upon qualifications and availability of job openings.
Leave for Care of Foster Child
An employer commits an unlawful employment practice if the employer administers a leave policy under which an employee is entitled to personal leave to care for or otherwise assist the employee’s sick child the leave policy described does not treat in the same manner as an employee’s biological or adopted minor child any foster child of the employee who:
      • Resides in the same household as the employee; and
      • Is under the conservatorship of the Department of Family and Protective Services.
Voting Leave
The employee is entitled to take paid time off for voting on election days unless the employee has at least two consecutive hours to vote outside of the voter’s working hours.
Jury Duty Leave
Employers must provide unpaid leave to employees summoned to jury duty. Job protections apply to employees taking jury duty leave. Employers may not punish or penalize employees for taking time off from work to comply with a valid subpoena to appear in court.
Emergency Evacuation Leave
An employer may not discharge or otherwise discriminate against an employee who leaves the workplace to participate in an emergency evacuation ordered by local or state authorities. An emergency evacuation order means an official statement issued in response to a natural or manmade disaster, which includes the occurrence or imminent threat of fire, flood, earthquake, wind, storm, wave action, oil spill, water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, explosion, riot, hostile military or paramilitary action, or other public calamity requiring emergency action or an energy emergency. An employer who violates this provision is liable for lost wages or benefits incurred by the employee and must also reinstate the employee in the same or equivalent position of employment with commensurate pay if the employee was discharged. This section does not apply to individuals employed as emergency workers, so long as the employer provides adequate emergency shelter, or to employees who are necessary to provide for the safety and well-being of the general public, such as utility workers.
Military Leave
An employer may not terminate the employment of an employee who is a member of the state military forces of this state or any other state because the employee is ordered to authorized training or duty by a proper authority. The employee is entitled to return to the same employment held when ordered to training or duty and may not be subjected to loss of time, efficiency rating, vacation time, or any benefit of employment during or because of the absence. The employee, as soon as practicable after release from duty, must give written or actual notice of intent to return to employment.

 

New Paid Sick Leave Law – Austin, Texas
Effective October 1, 2018, an employer shall grant an employee one hour of earned sick time for every 30 hours worked for the employer in the City of Austin. Earned sick time shall be granted in one-hour increments, and shall not be granted in increments of a fraction of an hour. Earned sick time shall accrue starting at the commencement of employment or the date this law is effective, whichever is later. Earned sick time shall be available for an employee to use in accord with this law as soon as it is accrued. Provided, that an employer may restrict an employee from using earned sick time during the employee’s first 60 days of employment with the employer if the employer establishes that the employee’s term of employment is at least one year. An employee may request earned sick time from an employer for an absence from the employee’s scheduled work time caused by:
      • The employee’s physical or mental illness or injury, preventative medical or health care, or health condition; or
      • The employee’s need to care for a family member’s physical or mental illness, preventative medical of health care, injury, or health condition; or
      • The employee’s need to seek medical attention, seek relocation, obtain services from a victim services organization, or participate in legal or court-ordered action related to an incident of victimization from domestic abuse, sexual assault, or stalking involving the employee or employee’s family member.
Donor Leave

State employees are allowed 30 days of paid leave for organ donation and 5 working days paid leave for bone marrow. (§661.916).

Last updated on: February 7th, 2019