Restaurant Workers Paid for the Shift Instead of the Hours Worked
Houston-Area Restaurant | Hourly Restaurant Employee | Houston, Texas
The Buenker Law Firm has represented many restaurant workers in overtime claims, and two pay practices come up often. The first is paying for the scheduled shift instead of the hours actually worked. An employee scheduled for an eight-hour shift is paid for eight hours, even when the time clock shows the employee came in early to set up, stayed late to close, or kept working after the shift was over. The second is paying hours over 40 at the employee's regular hourly rate instead of at time and a half, sometimes as a separate line on the pay statement labeled as extra or additional pay.
A current claim alleges both practices. The Buenker Law Firm represents an hourly employee of a Houston-area restaurant in a claim for unpaid overtime. According to the claim, the employee was paid for scheduled shifts rather than for the hours clocked, and overtime was paid only when the employee picked up an extra shift outside the schedule. The claim also states that for a period, hours over 40 were paid at the employee's regular rate with no overtime premium.
The Fair Labor Standards Act requires covered employers to count all of the hours a non-exempt employee works and to pay one and one half times the regular rate for every hour over 40 in a workweek. Work the employer knows about or allows is counted, including work done before and after a scheduled shift. Paying hours over 40 at the regular rate leaves the overtime premium unpaid, whatever the pay statement calls the payment. Overtime is figured one workweek at a time, so a long week cannot be balanced against a short one. The employer must also keep accurate records of the hours worked, and when those records are missing or wrong, the employee may prove the hours with a reasonable estimate. An employer that owes overtime generally owes an equal amount in liquidated damages.
This matter involves one worker, and no lawsuit has been filed. The Buenker Law Firm represents workers in overtime claims ranging from a single employee to collective actions brought on behalf of many workers at once. Not every claim requires a lawsuit, and some can be presented to the employer directly, with the pay records and the calculation laid out, and resolved without going to court. Whether that is possible depends on the facts and on how the employer responds. This claim is pending.
Workers in similar situations may have legal rights under the FLSA. The statute of limitations for wage and overtime claims is generally two years, or three years if the employer's conduct was willful. Time limits apply.
