Do bonuses and commissions count toward my "regular rate" for overtime?

Yes, most non-discretionary bonuses (production bonuses, attendance bonuses, commissions) must be included when calculating your regular rate for overtime purposes. Only truly discretionary bonuses (a surprise holiday gift from the employer) can be excluded. This often means your overtime rate is higher than 1.5× your stated hourly rate — a gap that generates most unpaid-overtime lawsuits.

Can my employer offer comp time instead of overtime pay?

Not in private-sector employment. Comp time (paid time off in lieu of overtime pay) is only lawful for state and local government employees under FLSA §207(o). If you work for a private company and your employer insists on comp time for hours over 40, that's a wage violation — the cash overtime is owed regardless.

Does on-call time count as hours worked?

Depends on the restrictions. If you must stay at the workplace or cannot effectively use the time for your own purposes (answering calls frequently, responding within 10 minutes), it counts as hours worked. If you're free to live normally but reachable by phone, it usually doesn't. Border cases (tight response windows, geographic restrictions) regularly produce DOL findings for the employee.

How far back can I recover unpaid overtime?

Two years from the date you file, extended to three years if the violation was "willful" — meaning the employer knew or showed reckless disregard for the law. Most courts find willfulness when employers misclassified workers after a prior DOL warning or where the pay structure was deliberately designed to avoid overtime. Liquidated (double) damages are also available in most cases.

When does the law regarding overtime pay apply?

You're entitled to overtime if all three of these are true:You worked more than 40 hours in a single workweek (your employer's defined seven-day stretch).You're classified as "non-exempt" — and remember, your employer doesn't get to decide that unilaterally.Your employer is covered by the FLSA. Most are: either the business does $500,000+ in annual sales and touches interstate commerce (enterprise coverage), or you personally handle goods, calls, or work that crosses state lines (individual coverage, which catches almost any modern job).The exemption test has two parts — your employer has to clear both.Salary test: You earn at least $684/week ($35,568/year).Duties test: Your primary duties have to actually fit one of these five buckets:Executive — you run a department or unit and direct at least two full-time employees.Administrative — your work is office or non-manual, tied to running the business, and you exercise real independent judgment on significant matters.Professional — the job requires advanced knowledge in a field of science or learning (doctors, lawyers, engineers, accountants).Computer employee — systems analyst, programmer, or software engineer earning at least $684/week (or $27.63/hr).Outside sales — you regularly make sales or take orders away from the employer's place of business.Three myths your employer might lean on:"Salaried employees don't get overtime." Wrong — salary alone proves nothing. Both tests have to be met."HR says you're exempt." Misclassification is one of the most common wage violations the DOL finds. The law decides, not the title on your offer letter."You signed a contract waiving overtime." That waiver isn't worth the paper it's printed on. You cannot legally sign away FLSA rights.

Texas Overtime Law (2026) - FLSA Only, 180-Day TWC Window

Q: What should I do if my employer doesn't pay overtime?

Cases get won on records, not memory. Start there.Step 1: Keep your own time log. Note when you start, when you stop, and every break. A notebook, a phone app, even photos of the time clock — anything contemporaneous beats your boss's word in front of a DOL investigator.Step 2: Check the math on your pay stubs. Pull every week you cracked 40 hours. The overtime hours have to be paid at 1.5× your regular rate, and the "regular rate" includes most non-discretionary bonuses and commissions — which is why a lot of overtime claims are even bigger than people first think.Step 3: Put it in writing. A short email to HR or your manager asking them to correct the underpayment is enough. Save the response (or the silence).Step 4: File the complaint. The DOL Wage and Hour Division takes complaints at 1-866-487-9243 or online at dol.gov. You can also call an employment attorney — most take overtime cases on contingency, so there's no money up front.

Q: What are the common mistakes to avoid regarding overtime pay?

Don't work off the clock. If your boss tells you to clock out but finish the task, that's textbook wage theft. Make a quick note of when it happened and what you were asked to do.Don't take "you're exempt" at face value. Run the salary and duties tests yourself. If anything's off, you may be owed years of back pay.Don't sit on it. The FLSA gives you 2 years from each paycheck (3 if the violation was willful). Wait too long and the earliest weeks fall off the back end of your claim.Don't quit before you file. You can file while you're still on the payroll, and retaliation for filing a wage complaint is itself illegal under FLSA §15(a)(3).

Researched by Ahmed R. J. Alsaedi, Founder & Head Researcher

Primary sources cited; not legal advice.

Source: Fair Labor Standards Act (FLSA), 29 U.S.C. § 207 — Enacted 1938, enforced by the U.S. Department of Labor.

About this article

Sourced from primary statutes (U.S. Code, CFR, state compiled statutes) and official government agency guidance. Written in plain language for general understanding — this is educational content, not legal advice. Our editorial standards

My employer isn't paying me overtime in Texas?See the focused guide →

Texas Law

Primary statute: 29 U.S.C. § 207 (FLSA, applied through Tex. Labor Code Ch. 61)

How Texas differs from federal law

1. The Rule: Texas OvertimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. in 2026

Texas has no state overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. statute. OvertimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. is governed entirely by the federal Fair Labor Standards Act (29 U.S.C. § 207): non-exempt employees must be paid 1.5× their regular rate for all hours over 40 in a workweek. There is no daily-hours trigger (unlike California), no consecutive-day rule, and no Texas-specific premium. The Texas Payday Law (Tex. Labor Code Ch. 61) does NOT add an independent overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. requirement — it only governs how, when, and how often wages must be paid, and provides an administrative channel through the Texas Workforce Commission for collecting unpaid wages (including unpaid federal overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules.).

2. Who It Covers

The FLSA reaches almost every Texas employer through either enterprise coverage (annual gross sales of $500,000+) or individual coverage (employees engaged in interstate commerce). Texas's enormous oil-and-gas, logistics, and healthcare sectors are uniformly covered. Independent contractor misclassification is the dominant overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. dispute in Texas — particularly for oilfield workers, truck drivers (subject to the FLSA Motor Carrier Act exemption, narrowly construed), and home-care workers. The Fifth Circuit applies the FLSA economic realities test (control, investment, opportunity, skill, permanence, integration) — a worker classified as a 1099 contractor who works set schedules at the employer's site using employer tools is almost certainly an employee.

3. Two Enforcement Tracks: TWC vs. Federal DOL

Texas workers pursuing unpaid overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. have two independent forums — and both run in parallel:

Texas Workforce Commission — Texas Payday Law claim: File at twc.texas.gov or call (800) 832-9243. Deadline: 180 days from the date wages were due. TWC investigates for free, contacts the employer, and issues a determination ordering payment. Appeals go to TWC's Wage Claim Appeal Tribunal. The 180-day window is much shorter than the federal SOL — miss it and you lose the state forum entirely.
US DOL Wage and Hour Division — FLSA claim: File at dol.gov/whd/complaints or call 1-866-487-9243. Deadline: 2 years from each unpaid pay period; 3 years for willful violations (29 U.S.C. § 255(a)). WHD can recover back wages + an equal amount in liquidated damages. Texas has DOL district offices in Dallas, Houston, McAllen, and San Antonio.
Private FLSA lawsuit (29 U.S.C. § 216(b)): File in Texas state court or one of the four federal districts (Northern, Southern, Eastern, Western). Texas federal courts have heavy FLSA caseloads. Prevailing employees recover back wages + 100% liquidated damages + mandatory attorney's fees. Collective actions (opt-in) are routine in oilfield and trucking cases.

4. Exemptions and Misclassification

Texas follows the federal FLSA exemption structure (29 C.F.R. Part 541) — executive, administrative, professional, computer, outside sales — at the federal $684/week ($35,568/year) salary threshold. Texas has not adopted a higher state threshold. The most common Texas misclassification disputes:

Oilfield workers: The Fifth Circuit has repeatedly held that day-rate oilfield workers (rig hands, well-site supervisors paid a fixed daily amount) are non-exempt and entitled to overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. regardless of total earnings. Hewitt v. Helix Energy Solutions (US 2023) confirmed daily-rate workers cannot be exempt unless they also meet the salary-basis test.
Healthcare: Working nurse managers, charge nurses, and care coordinators who spend the majority of time on patient care rather than management functions are non-exempt.
Construction supervisors: Foremen and crew leads who don't manage two FTEs or lack independent hiring/firing authority fail the executive-exemption duties test.
Logistics dispatchers and inside sales: Routinely misclassified as administrative or outside-sales exempt — the duties tests rarely fit.

5. How to Calculate Your OvertimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. Pay

Establish your regular rate of pay. Regular rate = total straight-time compensation (including non-discretionary bonuses, production premiums, and shift differentials) divided by total hours worked. A $200 production bonus in a 50-hour week at $20/hr raises your regular rate to (($20 × 50) + $200) ÷ 50 = $24.00/hr. OvertimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. rate = 1.5 × $24.00 = $36.00/hr.
Count all compensable hours. Pre-shift setup, post-shift cleanup, mandatory safety meetings, and required training all count. Travel between worksites in the same workday counts. Commute time generally does not.
Apply the 40-hour threshold. Hours 1–40 = straight time. Hours 41+ = 1.5× regular rate. Texas does not require daily overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules., so a 12-hour shift in a 40-hour week generates no overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. premium.
Tipped workers: Texas uses the federal $2.13/hr tipped cash wage with a $5.12 tip credit (to reach $7.25). OvertimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. for tipped workers must be calculated on the full $7.25 minimum wage, not the $2.13 tipped cash wage — see 29 C.F.R. § 531.59.

6. Damages and Penalties

Back wages: The unpaid 0.5× overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. premium for every overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. hour worked.
100% liquidated damages (29 U.S.C. § 216(b)): Equal to the back-wage award — total recovery is 2× back wages. Employers avoid liquidated damages only by proving subjective good faith AND objective reasonable belief.
Attorney's fees and costs: Mandatory for prevailing employees in private FLSA suits.
TWC administrative penalty: Up to $1,000 per violation under Tex. Labor Code § 61.053 for employers who fail to pay after a TWC final order. Liens may be placed on the employer's property to secure collection.
Retaliation prohibited: Both the FLSA (29 U.S.C. § 215(a)(3)) and the Texas Payday Law (§ 61.018) prohibit retaliation for filing a wage claim. Texas at-will employmentThe default US rule that either the employer or the employee can end the job at any time, for almost any reason. It does not allow firing you for an illegal reason — such as discrimination, retaliation, or refusing to break the law. does NOT permit termination for protected wage-complaint activity.

7. Resources

Texas Workforce Commission — Wage Claim portal: twc.texas.gov/wage-and-hour — (800) 832-9243 — 180-day deadline
US DOL Wage and Hour Division (Texas offices): Dallas, Houston, McAllen, San Antonio — dol.gov/whd/complaints — 1-866-487-9243
State Bar of Texas Lawyer Referral Service: (800) 252-9690 — wage and hour referrals
Texas RioGrande Legal Aid: (888) 988-9996 — wage theftWhen an employer fails to pay the wages legally owed — including unpaid overtime, off-the-clock work, kept tips, or below-minimum-wage pay. It is illegal under federal and state wage-and-hour laws. assistance for South Texas and oilfield workers
Lone Star Legal Aid: (713) 652-0077 — wage theftWhen an employer fails to pay the wages legally owed — including unpaid overtime, off-the-clock work, kept tips, or below-minimum-wage pay. It is illegal under federal and state wage-and-hour laws. assistance in Greater Houston, East Texas

Additional Steps in Texas

Calendar your 180-day TWC deadline immediately. The state forum closes 180 days after wages were due — months before the federal 2-year SOL. File with both TWC and the federal DOL in parallel; they don't preempt each other. If you have evidence of willful violations (manager admissions, written instructions to underpay), the federal SOL extends to 3 years and TWC's penalty exposure increases.

Relevant Law: 29 U.S.C. § 207 (FLSA overtime — 1.5× after 40 hours/week; no Texas state overtime statute); 29 U.S.C. § 216(b) (private right of action + 100% liquidated damages + mandatory attorney's fees); 29 U.S.C. § 255(a) (2-year FLSA SOL; 3-year for willful); 29 U.S.C. § 215(a)(3) (FLSA anti-retaliation); Tex. Labor Code § 61.011 (Texas Payday Law); § 61.014 (180-day TWC claim deadline); § 61.018 (anti-retaliation under TPL); § 61.053 (administrative penalty); 29 C.F.R. Part 541 (FLSA white-collar exemption salary $684/week); 29 C.F.R. § 531.59 (tipped overtime base = full minimum wage)

Federal baseline: Overtime Pay nationwide

What is this right?

The rule is older than your grandparents and it hasn't changed: work more than 40 hours in a single workweek and your employer owes you at least 1.5 times your regular rate for every hour past 40. That's the Fair Labor Standards Act, on the books since 1938.

It covers most hourly workers automatically. If you're salaried but earn less than $684 a week ($35,568 a year), you're owed overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. no matter what your job title says. Above that salary line, your employer can call you "exempt" — but only if your actual day-to-day duties fit one of the narrow categories the DOL spells out (executive, administrative, professional, computer, or outside sales). The label isn't enough; the duties have to match.

One thing worth knowing: the DOL tried to raise the salary threshold to $58,656 in 2024, which would have pulled millions of mid-level salaried workers back into overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. eligibility. A federal judge in Texas vacated the rule in November 2024, so the line is still $35,568 going into 2026.

When does it apply?

You're entitled to overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. if all three of these are true:

You worked more than 40 hours in a single workweek (your employer's defined seven-day stretch).
You're classified as "non-exempt" — and remember, your employer doesn't get to decide that unilaterally.
Your employer is covered by the FLSA. Most are: either the business does $500,000+ in annual sales and touches interstate commerce (enterprise coverage), or you personally handle goods, calls, or work that crosses state lines (individual coverage, which catches almost any modern job).

The exemption test has two parts — your employer has to clear both.

Salary test: You earn at least $684/week ($35,568/year).
Duties test: Your primary duties have to actually fit one of these five buckets:
- Executive — you run a department or unit and direct at least two full-time employees.
- Administrative — your work is office or non-manual, tied to running the business, and you exercise real independent judgment on significant matters.
- Professional — the job requires advanced knowledge in a field of science or learning (doctors, lawyers, engineers, accountants).
- Computer employee — systems analyst, programmer, or software engineer earning at least $684/week (or $27.63/hr).
- Outside sales — you regularly make sales or take orders away from the employer's place of business.

Three myths your employer might lean on:

"Salaried employees don't get overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules.." Wrong — salary alone proves nothing. Both tests have to be met.
"HR says you're exempt." Misclassification is one of the most common wage violations the DOL finds. The law decides, not the title on your offer letter.
"You signed a contract waiving overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules.." That waiver isn't worth the paper it's printed on. You cannot legally sign away FLSA rights.

What to Do If Your Employer Doesn't Pay Overtime

Cases get won on records, not memory. Start there.

Step 1: Keep your own time log. Note when you start, when you stop, and every break. A notebook, a phone app, even photos of the time clock — anything contemporaneous beats your boss's word in front of a DOL investigator.

Step 2: Check the math on your pay stubs. Pull every week you cracked 40 hours. The overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. hours have to be paid at 1.5× your regular rate, and the "regular rate" includes most non-discretionary bonuses and commissions — which is why a lot of overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. claims are even bigger than people first think.

Step 3: Put it in writing. A short email to HR or your manager asking them to correct the underpayment is enough. Save the response (or the silence).

Step 4: File the complaint. The DOL Wage and Hour Division takes complaints at 1-866-487-9243 or online at dol.gov. You can also call an employment attorney — most take overtimeUnder the federal Fair Labor Standards Act, non-exempt employees must be paid at least 1.5× their regular hourly rate for hours worked beyond 40 in a workweek. State laws can require more generous overtime rules. cases on contingency, so there's no money up front.

What should you NOT do?

Don't work off the clock. If your boss tells you to clock out but finish the task, that's textbook wage theftWhen an employer fails to pay the wages legally owed — including unpaid overtime, off-the-clock work, kept tips, or below-minimum-wage pay. It is illegal under federal and state wage-and-hour laws.. Make a quick note of when it happened and what you were asked to do.

Don't take "you're exempt" at face value. Run the salary and duties tests yourself. If anything's off, you may be owed years of back pay.

Don't sit on it. The FLSA gives you 2 years from each paycheck (3 if the violation was willful). Wait too long and the earliest weeks fall off the back end of your claim.

Don't quit before you file. You can file while you're still on the payroll, and retaliation for filing a wage complaint is itself illegal under FLSA §15(a)(3).

Texas overtime is pure federal FLSA — 1.5× after 40 hours/week. File with TWC within 180 days or use the federal 2-year DOL window. Both tracks run independently and recover 100% liquidated damages plus mandatory attorney's fees in private suits.

Answer a few questions. We generate a personalized letter citing your state's exact statutes, deadlines, and penalties — ready to print and send in minutes.

Lawyers charge $350+. Your letter: $19.

Overtime Pay Demand$19 Unpaid Wages$19 Overdue Invoice$19 Final Notice to Sue$19

See all 18 letter types →

Common Questions

When am I entitled to overtime pay?

Under the federal Fair Labor Standards Act, non-exempt employees must be paid 1.5 times their regular rate for hours worked beyond 40 in a workweek. Some states add daily overtime — California, for example, pays overtime after 8 hours in a single day.

Does overtime apply daily or only weekly?

Federal law uses a 40-hour weekly threshold. A handful of states also require daily overtime — for example, time-and-a-half after 8 hours and double-time after 12 hours in a day in California. Your state's section above notes any daily-overtime rule that applies.

Am I exempt from overtime?

Exemption depends on your actual job duties and salary level, not your job title alone. Many salaried workers are still owed overtime. If you're unsure, your state's section above and the federal duties tests can help you check whether you qualify.

What can I recover for unpaid overtime?

You can generally claim the unpaid overtime wages, and many states add liquidated damages plus attorney's fees. Filing deadlines are commonly two to four years. Keep your own record of the hours you worked as evidence — see your state's section for specifics.

Overtime Pay in other states

Same topic, different jurisdiction. Pick the one that applies to you.

You Might Also Need to Know

Tax RightsIRS Audit Rights (in Texas)An audit letter in the mailbox is one of the more visceral experiences in American adult life, but most audits are routi...Read more →

Consumer RightsDebt Collection (in Texas)Before 1977, debt collectors could call your house at 2 a.m., tell your neighbors you were a deadbeat, threaten violence...Read more →

Every reference below links to its primary source — the statute book, regulator, or court — and carries a verification date. See our citation methodology for how this works.

Texas

Federal

StatuteFair Labor Standards Act § 7 (overtime)
Establishes the 1.5× regular rate requirement for hours worked over 40 in a workweek.
Regulation29 C.F.R. Part 541 (white-collar exemptions)
DOL regulations defining the executive, administrative, professional, computer, and outside-sales exemption tests; salary threshold remains $684/week after the 2024 rule was vacated.
StatuteFLSA § 16(b) (private right of action, liquidated damages)
Authorizes employee suits for unpaid overtime plus an equal amount in liquidated damages and attorney's fees.
Agency guidanceDOL Wage and Hour Division — Overtime Pay
Department of Labor's official overtime guidance and complaint-filing portal.