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May 1, 2020

Overtime Issues and Tipped Employees in El Paso, Texas

What is tipping? It is a form of employee compensation in which employees receive wages from the employer and customers. The Fair Labor Standards Act (FLSA) and Texas Payday Law both recognize tips as wages to the tipped employee. They are subject to minimum wage requirements, overtime pay and other wage rules. El Paso has a large number of service industry employees so this is a big issue. Here at Martinez & Martinez Law Firm we help clients in El Paso, West Texas, and New Mexico with tipping issues under federal and state employment laws.


What are your rights? Tipped employees receive $7.25 minimum wage UNLESS the employer notified the employee in writing that it intends to take the tip credit on minimum wage. The tip credit allows the employer to pay $2.13 so long through a combination of tips and the employers $2.13 hourly contribution the employer is only required to calculate overtime based on $7.25 hourly. Your employer may not change the work week to prevent paying overtime. For example, your employer may not shorten the week or change the start and end dates of the week. Your employer also cannot roll hours over from week to week to cap pay at forty hours. The employer cannot give you paid time off in a different week or some other benefit instead of overtime pay. If your employer does this you should speak with an employment lawyer (such as Martinez & Martinez Law Firm) right away. 


What about tip pooling and tipping out in El Paso, Texas? Per federal and state law, tips are compensation to the employee. Tip pooling is when tipped employees pool some or all of their tips and then split them.  Tipping out is when the tipped employees give a percent of the tips to toher tip-eligible employees who assist the service provided. Texas law allows the employer to require tipped employees to join the tip pool or to tipping out. But there are limitations.  The employer can only require this on tips that exceed the amount needed to reach minimum wage ($7.25).


What can i do? If you believe your employer failed to pay minimum wage, overtime pay, or improperly requires you to tip out or pool tips, you should talk to an employment lawyer (such as Martinez & Martinez Law Firm) right away. You can recover wages owed to you for these violations. 


LEGAL DISCLAIMER


This blog is for informational purposes only. It is not legal advice. This information is based on Federal and Texas law.  Law may be interpreted or applied differently by different states. 

Overtime - Salaried Employees Have Wage and Hour Rights

October 19, 2023
The Fair Labor Standards Act (FLSA) is the federal law the controls the terms under which employees must be paid overtime. Every employee fall into one of two categories "Exempt" or "Non-Exempt". If an employee is non-exempt, when they reach more than 40 hours in a given work week, they have to be paid at time and a half for any additional hours. If they are non-exempt, they aren't eligible for overtime. Most workers think that if you’re “hourly” you’re entitled to overtime pay. They also think the converse is true, if you’re “salary” you’re not entitled to overtime pay. There are exemptions to this commonly understood rule, the rule against docking pay. Exempt (and salaried) employees who are late or who need to leave work early - due to traffic, for a doctor's appointment, taking kids to school, whatever - cannot have their pay docked for missing a couple of hours of work. If an exempt, salaried employee shows up for work, even if it's just for 15 minutes, the employee must be paid for the entire day. That’s the law. An employer is free to discipline, fire, or demote the employee (so long as there is a legitimate business reason). But it cannot dock the employee's pay. A small caveat is that the employer is allowed to dock vacation time and force the employee to use that to cover the hours missed. If the employer breaks this rule and docks pay then the employer has just lost the FLSA "exemption" as to that employee. In other words, the employee is now owed overtime for all hours over 4o worked in the last two (maybe three) years plus all overtime worked in the future. If you are paid by salary and your employer docks your pay for being late or missing a few hours of work here or there, you should contact our Firm right away. Your employer is taking advantage of you and breaking the law. You may be owed a substantial amount of overtime pay. 

Fifth Circuit Leaves Room For Title VII To Prohibit Transgender Employment Discrimination

January 21, 2019
On February 6. 2019, the Fifth Circuit, in Wittmer v. Phillips 66 Company , affirmed the granting of summary judgment in favor of employer Phillips 66 on a claim of employment discrimination based on transgender status. The Court wrote to reject the district court’s summary conclusion that Title VII prohibited employment discrimination on the basis of transgender status. Interestingly, this decision leaves the door cracked for the possibility that the Fifth Circuit might one day hold that Title VII does in fact prohibit transgender employment discrimination so long as the court distinguishes the binding precedent in this Circuit holding that Title VII does not prohibit sexual orientation discrimination. Text of the Fifth Circuit Opinion. 

El Paso Transportation Workers Win The Day! New Prime Inc. v. Oliveira

January 17, 2019
For the first time in more than a decade, opponent’s of arbitration agreements win the day. Justice Neil Gorsuch, in a unanimous decision, states that an exception to the rule exists regarding the requirement that obligates court’s to enforce arbitration agreements that involve interstate commerce. The Federal Arbitration Act (FAA), generally requires worker’s to arbitrate if a valid arbitration agreement exists. In this case, all agree that the truck drivers (including respondent Dominic Oliveira) driving trucks for petitioner New Prime are “workers engaged in foreign or interstate commerce.” However, transportation workers have long been excluded from this requirement. However, many companies were able to get around this rule by entering into independent contractor relationships in lieu of the traditional employee-employer relationship. This unanimous decision changes that. The question for the court is whether the lower courts should have sent this dispute to arbitration even though the drivers might work for New Prime as independent contractors rather than as employees. The Supreme Court held that the exclusion for transportation workers removes both employer-employee contracts and contracts involving independent contractors from the FAA’s coverage. The Court also held that a court should decide for itself whether Federal Arbitration Act's exclusion for “contracts of employment” of certain transportation workers applies before ordering arbitration. *For more information see the following: Ronald Mann, Opinion analysis: Justices uphold arbitration exemption for transportation workers in rare victory for arbitration opponents , SCOTUSblog (Jan. 15, 2019, 4:24 PM), https://www.scotusblog.com/2019/01/opinion-analysis-justices-uphold-arbitration-exemption-for-transportation-workers-in-rare-victory-for-arbitration-opponents/
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