Unpaid Overtime Claim for a Salaried, Hourly-Billed Employee

Attorney Answer

Being paid a fixed salary for 70–80 hours a week while your time is billed out hourly to a general contractor very likely entitles you to overtime pay — a fixed salary alone does not excuse an employer from paying it.

Under section 7 of the Fair Labor Standards Act (29 U.S.C. § 207), covered employers must pay non-exempt employees at least one and one-half times their regular rate for hours worked over 40 in a workweek. Employees whose hours are clocked in and out and billed hourly to a client generally don't fit the narrow executive, administrative, or professional exemptions, so the facts you describe point toward non-exempt status. Overtime is not simply your informal $20/hour average, and the divisor you use matters enormously. The default rule is 29 C.F.R. § 778.113(a): a weekly salary is divided by "the number of hours which the salary is intended to compensate" — not by every hour you actually worked. If your salary was understood to cover a normal 40-hour week, your regular rate is that salary divided by 40, and you are owed one and one-half times that rate for each hour past 40. Dividing by all 70 or 80 hours is a different rule, the fluctuating-workweek method in 29 C.F.R. § 778.114, and it applies only where you and your employer had a "clear and mutual understanding" from the start that the fixed salary was pay for the total hours worked each week regardless of how many; where it does apply, the salary has already covered straight time for every hour, so only an additional one-half of the regular rate is owed per overtime hour, not one and one-half. So nail down what your salary was actually meant to buy before you run any numbers — the two methods can differ by roughly double.

What you can do:

1. Keep your own records of hours worked, clock-in/out data, and any evidence of what the contractor was billed.

2. Calculate potential unpaid overtime using the regular-rate method above, not the flat $20/hour figure.

3. File a wage claim with the Texas Workforce Commission under the Texas Payday Law, and/or pursue a federal FLSA claim.

4. Have an employment attorney confirm your exemption status and the amount owed.

⏱ Time limits apply. Texas Payday Law wage claims must be filed with the Texas Workforce Commission within 180 days of when the wages became due, and FLSA overtime claims otherwise carry a 2-year (3-year if willful) federal statute of limitations. Have a local employment attorney review your situation promptly to confirm which deadlines apply to you.