What Is Considered Overtime in Texas: Rules, Pay, and Exemptions

In Texas, overtime is any time you work beyond 40 hours in a single workweek, and it must be paid at no less than one and a half times your regular rate of pay. Texas has no separate overtime law for private employers, so what is considered overtime in Texas is set entirely by the federal Fair Labor Standards Act.¹ The federal rules are the floor and the ceiling. There are no extra state protections, and daily overtime after eight hours (common in some other states) does not apply here.

The 40-Hour Workweek Rule

Overtime is measured one workweek at a time. Under the FLSA, a workweek is a fixed, recurring period of 168 consecutive hours, or seven straight 24-hour days. Your employer picks when it starts, and it doesn’t have to match the calendar week. Every hour over 40 inside that period is overtime.²

Only hours you actually work count toward 40. Paid vacation, sick leave, holidays, and jury duty do not, because you weren’t performing job duties.³ Work 32 hours and take 8 hours of paid vacation, and your paycheck shows 40 hours but no overtime is owed.

Your employer also cannot average hours across weeks. Fifty hours one week and thirty the next is not 40 and 40. It’s ten hours of overtime for the first week, and the second week stands on its own.¹

How Your Overtime Pay Is Calculated

Overtime pays at least 1.5 times your “regular rate,” which is not always your base hourly wage. The regular rate pulls in most of what you earn during the week: non-discretionary bonuses, production incentives, commissions, and shift differentials all get rolled in.² Gifts, holiday bonuses that don’t depend on hours or productivity, vacation and sick pay, truly discretionary bonuses, and employer contributions to retirement or health plans stay out of the calculation.⁴

Here is where employers get it wrong. Say you earn $20 an hour and work 45 hours in a week with a $100 non-discretionary performance bonus. Your regular rate is not $20. Total straight-time pay is $20 × 45 + $100 = $1,000. Divide by 45 hours and your regular rate is about $22.22. The overtime premium for the five extra hours is half of that regular rate, or roughly $11.11 per overtime hour, on top of the $1,000 you already earned. An employer who just pays $30 (1.5 × $20) for the overtime hours and calls it done has underpaid you.

Tipped Employees

If your employer takes a tip credit against your wage, overtime works a little differently. Your regular rate is your direct cash wage plus the tip credit, not just the cash wage. Multiply that full regular rate by 1.5, then subtract the tip credit to get the cash wage owed for each overtime hour.⁵ The tip credit used for overtime hours cannot be larger than the one used for your straight-time hours.

Who Doesn’t Get Overtime

Not every worker qualifies. The FLSA exempts certain employees whose jobs involve higher-level responsibilities, and most of those fall under the executive, administrative, and professional categories, often called the white-collar exemptions.⁶

To be exempt under one of these categories, an employee generally has to pass both a salary test and a duties test. After a federal court in the Eastern District of Texas vacated the Department of Labor’s 2024 rule, the enforceable salary threshold went back to $684 per week, or $35,568 per year.⁷ Hitting that salary is only half the test. The actual day-to-day work has to match the duties for the exemption claimed.

The duties look different in each category. Executive-exempt employees hold real authority over hiring and firing and supervise a meaningful part of the business. Administrative-exempt workers run office or business operations and exercise independent judgment on matters of real significance. Professional-exempt employees work in fields that require specialized education, such as law, medicine, or engineering, or do original creative work in the arts.⁶ A job title does not control the analysis. What you actually do each day is what matters, and that gap between title and reality is where many misclassification disputes begin.

Two other common exemptions:

Highly compensated employees. Workers earning at least $107,432 a year in total compensation face a lighter duties test. They qualify as exempt if their primary duty is office or non-manual work and they regularly perform at least one duty from the executive, administrative, or professional categories.⁸
Outside sales. Outside salespeople are exempt no matter what they earn. There is no salary floor. Their primary duty must be making sales or getting contracts, and they must do that work regularly away from the employer’s place of business. Phone and online sales from a fixed office do not count.⁹
Computer professionals. Certain computer workers are exempt if they earn at least $27.63 per hour straight-time, or meet the standard salary basis. The duties test is narrow: primary work must involve systems analysis, software design and development, or programming. Heavy software use alone, as in graphic design, does not qualify.¹⁰

What Counts as Hours Worked

The FLSA uses a “suffer or permit to work” standard. If your employer knows or has reason to know you’re working, that time counts, whether or not it was formally scheduled. Setup before a shift, cleanup after, finishing paperwork at home: if the employer benefits and allows it, the time has to be logged.

A few recurring questions:

Mandatory training and staff meetings count as hours worked. Voluntary training can be excluded only when it falls outside normal hours, is unrelated to your current job, and involves no productive work for the employer. All of those conditions have to be met.¹¹
Your normal commute from home to your regular worksite is not paid time. Travel between job sites during the workday is. If you report to one location in the morning and get sent across town in the afternoon, the drive counts.¹¹
On-call time depends on how restricted you are. Required to stay on the premises? Compensable. Free to go home and just stay reachable? Generally not compensable, as long as you can use the time for your own purposes. The more restrictions pile on (short response times, geographic limits, no alcohol), the more likely the on-call hours tip into work time.¹¹

If You Work for a Texas State Agency

State agencies have an option private employers do not. Instead of paying cash overtime, a Texas state agency can give compensatory time off at 1.5 hours per overtime hour worked. Cash is paid only when the agency decides comp time would be impractical.³ Private-sector employers in Texas cannot substitute comp time for overtime pay.

If Your Employer Underpaid You

An employer that violates the FLSA’s overtime rules owes you the unpaid wages plus an equal amount in liquidated damages, and a court must award reasonable attorney’s fees and costs.¹² In practice, $5,000 in unpaid overtime can turn into $10,000 plus your lawyer’s bill. The employer can avoid liquidated damages only by proving the violation was in good faith and based on reasonable grounds to believe it was lawful.¹³

You have two places to file.

The Texas Workforce Commission accepts a wage claim on its official form, and it must be filed no later than 180 days after the wages were originally due.¹⁴ If some of your unpaid wages fell due more than 180 days ago but others are more recent, you can still claim the portion that falls inside the window.¹⁵

The federal route through the U.S. Department of Labor allows claims going back two years from the date the wages were owed, or three years if the violation was willful, meaning the employer knew it was breaking the law or acted with reckless disregard for the rules.¹⁶ The difference between two and three years can be substantial, which is why the willfulness question carries real weight in litigation.

1
U.S. Department of Labor. Overtime Pay
2
Office of the Law Revision Counsel. 29 USC 207 – Maximum Hours
3
Texas Comptroller of Public Accounts. Overtime – Texas Payroll/Personnel Resource
4
eCFR. 29 CFR Part 778 Subpart C – Payments That May Be Excluded From the Regular Rate
5
U.S. Department of Labor. FLSA Overtime Calculator Advisor
6
Texas Workforce Commission. Focus on the White-Collar Exemptions
7
U.S. Department of Labor. Earnings Thresholds for the Executive, Administrative, and Professional Exemption
8
U.S. Department of Labor. Fact Sheet 17H – Highly-Compensated Employees
9
eCFR. 29 CFR Part 541 Subpart F – Outside Sales Employees
10
U.S. Department of Labor. Fact Sheet 17E – Exemption for Employees in Computer-Related Occupations
11
U.S. Department of Labor. Fact Sheet 22 – Hours Worked Under the FLSA
12
Office of the Law Revision Counsel. 29 USC 216 – Penalties
13
Office of the Law Revision Counsel. 29 USC 260 – Liquidated Damages
14
Texas Workforce Commission. Texas Payday Law – Wage Claim
15
Texas Workforce Commission. Wage Claim and Appeal Process in Texas
16
U.S. Department of Labor. Back Pay