Is It Illegal to Not Pay Overtime in Texas?

Yes. In Texas, it is illegal for an employer to not pay overtime to a non-exempt employee who works more than 40 hours in a single workweek. Texas has no state overtime statute, so the federal Fair Labor Standards Act (FLSA) controls, and it requires one and a half times your regular rate for every hour past 40.¹ Employees who are shorted can recover double their unpaid wages plus attorney fees, and willful violations expose employers to criminal penalties.

The Federal Rule Behind Texas Overtime

The FLSA sets one clear line: 40 hours in a workweek. A workweek is any fixed, recurring block of seven consecutive days. Your employer chooses the start day, but it has to stay consistent. They cannot slide the week around to keep your hours under the threshold.²

The law does not require extra pay just because you worked a weekend, a holiday, or a night shift. Those hours only trigger overtime if they push your weekly total past 40.¹

Overtime is calculated on your “regular rate of pay,” which is broader than your hourly wage. It includes nondiscretionary bonuses, commissions, and shift differentials on top of base pay.³ Discretionary bonuses, gifts, vacation and holiday pay, and benefit contributions are excluded. When commissions or production bonuses are in the mix, employers commonly miscalculate the regular rate and underpay overtime as a result.

Who Actually Qualifies for Overtime

The FLSA divides workers into “non-exempt” (entitled to overtime) and “exempt” (not entitled). The most common exemptions are the white-collar categories: executive, administrative, professional, computer, and outside sales.⁴ Each requires passing both a salary test and a duties test. A title alone does not make you exempt. Calling someone a “manager” without giving them real management responsibility does not defeat their right to overtime.

The Salary Threshold

For most white-collar exemptions, you must earn at least $684 per week, or $35,568 per year, on a salary basis. The Department of Labor tried to raise this floor in 2024, but a federal court in the Eastern District of Texas vacated that rule in November 2024, so the $684 weekly level from the 2019 rule is what the DOL is enforcing.⁵ Earn less than that on salary and you are non-exempt no matter what your job duties look like.

The Duties Tests, in Brief

Meeting the salary threshold is only the first hurdle. Your actual job has to fit an exemption’s duties test:

Executive: primary duty is managing the business or a department, regularly directing at least two full-time employees, with meaningful authority over hiring and firing.⁶
Administrative: office or non-manual work tied to the company’s general operations (finance, HR, quality control), involving real discretion and independent judgment on significant matters, not routine procedure-following.⁷
Professional: work requiring advanced knowledge in a field of science or learning, typically acquired through prolonged specialized study. Doctors, lawyers, engineers, and licensed accountants are the standard examples. Creative professionals whose work depends on invention or originality also qualify.
Computer: systems analysts, programmers, and software engineers whose primary work is designing, developing, testing, or analyzing computer systems. Either $684 per week on salary or $27.63 per hour meets the pay test. Help desk staff and hardware technicians do not qualify.⁸
Outside sales: primary duty is making sales or obtaining contracts, regularly performed away from the employer’s premises. No minimum salary applies.⁹

Highly compensated employees earning at least $107,432 per year face a simpler test. They are exempt if they regularly perform at least one duty of an executive, administrative, or professional employee, but they still must receive at least $684 per week on a salary basis.¹⁰

Independent Contractor Misclassification

Some employers avoid overtime by labeling workers as independent contractors. If your working conditions look like employment (your employer sets your schedule, provides your tools, and you work exclusively for one company) you may be an employee in the eyes of the law and entitled to overtime even if your paperwork says otherwise.¹¹ The DOL uses a six-factor “economic reality” test that weighs control over the work, opportunity for profit or loss, permanence of the relationship, skill required, worker investment, and how central the work is to the business.¹² No single factor controls.

Common Practices That Are Illegal

A few employer moves come up over and over, and each violates federal law for private-sector workers in Texas.

Averaging Hours Across Two Weeks

An employer cannot average your hours across a two-week pay period. Work 50 hours one week and 30 the next, and they still owe you 10 hours of overtime for the first week. Each workweek stands alone under the FLSA.¹

Comp Time Instead of Overtime Pay

Compensatory time off in place of overtime wages is legal for government employees under certain conditions. For private-sector employees, it is not. Private employers must pay overtime in wages, and they cannot substitute future paid time off even if the employee agrees.

Off-the-Clock Work

Compensable hours include all time your employer requires you to be working or on duty. That covers:

Booting up systems, donning required safety gear, and completing mandatory security checks before or after your shift, even a few minutes at a time.
Training sessions, unless the training is voluntary, outside your normal schedule, unrelated to your job, and involves no productive work. All four conditions must be met to exclude it.
Travel between job sites during the workday. Your normal commute does not count, but if you’re required to perform tasks like picking up supplies on the way, that travel becomes work time.

What You Can Recover

If your employer failed to pay overtime you were owed, you can recover the unpaid wages plus an equal amount in liquidated damages, effectively doubling the sum. Courts must also award reasonable attorney fees and costs.¹³ A $5,000 shortfall in overtime can become $10,000 in recovery, on top of legal fees.

Willful violations carry criminal exposure as well: fines up to $10,000, and up to six months in jail for a second offense.¹³ Criminal prosecution is uncommon, but the possibility gives the DOL leverage in pattern-and-practice cases.

How to File an Unpaid Overtime Claim

You have three routes: a state wage claim with the Texas Workforce Commission, a federal complaint with the DOL’s Wage and Hour Division, or a private lawsuit in federal court.

Texas Workforce Commission

The TWC accepts wage claims online, by mail, or by fax under the Texas Payday Law.¹⁴ You’ll need your employer’s full legal name and address, your job title and duties, whatever records you have of hours worked (timesheets, personal logs, calendar entries, emails), pay stubs, and a calculation of what you’re owed.

You must file within 180 days of the date the wages were originally due. Miss that window and the TWC will not process the claim.¹⁴

If your records are incomplete, file anyway. The FLSA puts the recordkeeping burden on the employer. Employers must maintain accurate records of hours worked, pay rates, and overtime for every non-exempt worker, and a failure to do so cuts against them, not you.¹⁵

Federal Wage and Hour Division

You can file a complaint directly with the DOL’s Wage and Hour Division by calling 1-866-487-9243.¹⁶ Complaints are confidential. The WHD will not disclose your name or confirm a complaint exists. The service is free, and the agency can investigate your employer on your behalf.

Private Federal Lawsuit

A private FLSA lawsuit gives you access to the full range of remedies: back pay, liquidated damages, and attorney fees. Many overtime attorneys work on contingency, taking a percentage of the recovery (typically 25% to 40%) with no upfront cost to you.

Deadlines to Watch

The clock differs depending on which path you take:

TWC wage claim: 180 days from when the wages were due.¹⁴
Federal lawsuit, standard violation: two years from when the violation occurred.¹⁷
Federal lawsuit, willful violation: three years from when the violation occurred.¹⁷

A willful violation means the employer knew its pay practices broke the law or showed reckless disregard for whether they did. That extra year reaches back another 12 months of back pay. If you’ve already passed the 180-day TWC deadline, a federal lawsuit may still be available, but every additional month of delay shrinks the recovery period.

Retaliation Is a Separate Violation

Federal law makes it illegal for your employer to fire you, cut your hours, demote you, or otherwise punish you for filing an overtime complaint or cooperating in a wage investigation.¹⁸ The protection applies whether you complained to a supervisor, filed with a government agency, or raised the issue in court.

If retaliation happens, you can bring a separate action for reinstatement, lost wages, and liquidated damages equal to those lost wages, plus attorney fees.¹⁹ Employers who punish workers for raising overtime claims often end up paying far more than the original wages at issue.

1
U.S. Department of Labor. Overtime Pay
2
Texas Workforce Commission. Fair Labor Standards Act – What It Does and Does Not Do
3
Office of the Law Revision Counsel. 29 USC 207 – Maximum Hours
4
U.S. Department of Labor. Fact Sheet 17A – Exemption for Executive, Administrative, Professional, Computer and Outside Sales Employees Under the Fair Labor Standards Act
5
U.S. Department of Labor. Earnings Thresholds for the Executive, Administrative, and Professional Exemption
6
eCFR. 29 CFR 541.100 – General Rule for Executive Employees
7
eCFR. 29 CFR 541.200 – General Rule for Administrative Employees
8
U.S. Department of Labor. Fact Sheet 17E – Exemption for Employees in Computer-Related Occupations Under the Fair Labor Standards Act
9
eCFR. 29 CFR 541.500 – General Rule for Outside Sales Employees
10
U.S. Department of Labor. Fact Sheet 17H – Highly-Compensated Employees and the Part 541 Exemptions Under the Fair Labor Standards Act
11
U.S. Department of Labor. Misclassification of Employees as Independent Contractors Under the FLSA
12
U.S. Department of Labor. Employment Relationship Under the Fair Labor Standards Act
13
Office of the Law Revision Counsel. 29 USC 216 – Penalties
14
Texas Workforce Commission. Texas Payday Law – Wage Claim
15
U.S. Department of Labor. Recordkeeping and Reporting
16
U.S. Department of Labor. How to File a Complaint
17
Office of the Law Revision Counsel. 29 USC 255 – Statute of Limitations
18
Office of the Law Revision Counsel. 29 USC 215 – Prohibited Acts
19
U.S. Department of Labor. Fact Sheet 77A – Prohibiting Retaliation Under the Fair Labor Standards Act