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Your Right to Be Paid Minimum Wage

·        How much is the minimum wage?

The current minimum wage is $5.15 per hour, under both federal and Texas law.

·        Am I entitled to get paid the minimum wage?

Almost all workers have a right to receive the minimum wage, under either the federal Fair Labor Standards Act or the Texas Minimum Wage Act.

·        Are their exceptions to the right to be paid minimum wage?

Yes, but very few.  There are few categories of workers and businesses who are not covered by the federal minimum wage law, but almost all of them are still covered under the Texas minimum wage law.  To find out for sure if you are covered contact a lawyer, a legal aid office, the U.S. Department of Labor or the Texas Workforce Commission.

·        Am I entitled to be paid the minimum wage, even if I am not paid by the hour?

Yes.  However you get paid - by the week, twice a month, by the job, or on a piece rate - you still have to get paid enough to add up to at least the minimum wage for each hour you work

·        If I am not paid by the hour, how to I calculate whether or not I am getting the minimum wage?

Add up all the earnings you have been paid for a work week, then divide those earnings by all the hours you worked during that work week.   If the average that you received for that work week does not come out to more than $5.15 an hour your minimum wages rights may have been violated.  Be sure to also read below about deductions that can and cannot be made from your wages.

·        Do I have to get $5.15 for every hour I work?  What if I earn more than $5.15 for some hours and less for some other hours?

If your earnings vary from hour to hour or day to day - for example you are paid on a piece rate basis - your overall earnings for the work week must average out to $5.15 and hour or more.

·        Can an employer take deductions out of my wages that reduce my wage below the minimum wage of $5.15 per hours?

An employer can make deductions for some items, even if this drops you wages below $5.15 per hour. But other items cannot be deducted, if that will reduce your wage below $5.15 per hour.

·        Items that an employer can deduct from you wages, even if this reduces you wage below $5.15 per hour, include:

o       Payroll taxes that the employer is required by law to deduct, like FICA taxes and income withholding taxes.  However, these tax deductions are legal only if  the employer actually then pays the taxes in to the government.

o       Money the employer is ordered by a court to deduct;

o       Money to repay an advance on your wages or a loan that the employer has already provided you.  However, you must actually have received this money and been free to spend it however you chose and you must have agreed in writing that it could be deducted later from your wages.

·        Items that an employer can never deduct from your wages, if the deduction will reduce your earnings below $5.15 an hour, include:

o       The cost of work tools you use in the job.  This also means you can't be charged a "deposit" for such tools or for the replacement of such tools, if this will reduce your wage below $5.15 an hour.

o       The cost of uniforms, or laundering uniforms, you use on the job.

o       The cost of repairing broken equipment or things you may have damaged during the job;

o       Cash register shortages or the bills that customers failed to pay.

·        The cost of meals and housing that the employer provides you as part of the job might be deductible, even if that reduces you below $5.15, but only if:

o       You actually receive the meals and housing

o       You have agreed in writing that these can be deducted from your wages

o       The employer deducts only the actual cost to the employer (which is usually much less than the supposed market value)

o       The employer has kept records to specifically document the actual cost of the meals and housing provided to you.

·        What if an employer doesn't actually deduct the things listed above, but requires me to pay for them out of my own pocket - for example the cost of the tools or uniforms I use on the job?

·        The employer cannot make you pay for these things yourself, if they are otherwise not legally deductible.  Making you pay for these things out of your own pocket is considered the same as if the employer deducted them in that work week.

·        How do I count my hours, to make sure my employer is paying me at least the minimum wage for all of my work time?

Normally, you get to count all the time that the employer requires you to be present at the worksite, ready to work.

·        Do I count the hours I spend waiting at the worksite as part of my work time?

Yes, if the employer requires you to be there during that time.  Even if you are not doing any work at the moment, but are expected to be there waiting for the employer to get started or to fix some equipment or to provide with the more work, this counts as work time.  Only if you are completely free to leave and are given a specific time when you should come back, can the employer take you off the clock.

·        Do I count meal breaks as part of my work time?

Normally, a meal break does not count as part of your work time, as long as  you are given at least 30 minutes off for the meal break, and as long as you are completely relieved from duty and are not required to be tending to any work-related task during the break.

·        Do I count rest breaks as part of my work time?

Normally, rest breaks of less than 20 minutes do count as part of your work time?  It benefits the employer to allow employees to rest periodically and you should not be clocked out during this time.

·        Do I count travel time connected with the job as part of my work time?

Normally you don't count your travel time between your home and your first worksite at the start of the day and you don't count your travel time between your last worksite and you home at the end of the workday.  But you do count as work time travel between one worksite and another.  You do count as work time travel you do as part of carrying out the employers business.  And you do count travel time transporting the employer's equipment or vehicles that are needed for the job.

·        Does my employer have to keep pay records?

Yes, every employer covered by the federal and state minimum wage laws is required to keep accurate pay records showing all the hours you worked in each work week, all the earnings you were paid for that work week, and all the deductions applied to your earnings for that work week?  The employee is not required to keep pay records.

·        What should I do if my employer is not keeping accurate pay records or is falsifying my pay records?

In this case you should try to keep your own record of the hours you work and the pay you receive.   Marking this information down daily on a calendar is a good way to track your hours and pay and you write down a record in a notebook.  Although the employee is not required to keep their own pay records - that is the legal responsibility of the employer - having your own record will help you prove your case later, if the employer has no records or the employer's records are not accurate.

·        Where can I get help enforcing my right to minimum wage?

The U.S. Department of Labor Wage and Hour Division and the Texas Workforce Commission are the government agencies that enforce the federal and state minimum wage laws.   But you can also get help from a lawyer's office or legal aid office.   If a lawyer takes your minimum wage case, she usually will not charge you a fee up front to represent you, but will instead try to make the employer pay her fee along with paying your back wages.

·        What wages and compensation can I get back if my employer fails to pay me the minimum wage?

Normally, you are legally entitled to get back all the minimum wages that your employer failed to pay you during the last two years.  In some cases where the violation was especially bad, you can get back your unpaid minimum wages going back three years.  In addition to your back wages, if you get a lawyer to help you file your own lawsuit, you can recover an amount equal to your back wages as damages to compensate you for not getting the money when you were supposed to get it and to punish the employer for not paying you when she should have.  This is sometimes called "double damages."  In addition, if you bring a lawsuit represented by a lawyer, you can ask that the defendant be ordered to pay the attorneys fees to compensate your lawyer.

·        What if I have already quit the job or no longer work at the job where I was getting less than the minimum wage?  Can I still bring a complaint or a lawsuit?

Yes.  In fact many employees don't feel safe trying to recover their back wages until after they have left the job.  You can still recover your unpaid wages and damages.  But remember you can only go back two years (sometimes three) from the time you file your complaint; so delay may cause you to lose some of the back pay you might otherwise be entitled to receive.