Texas Lunch and Break Law
August 7th, 2006 Posted by SarahI find that many employees and employers alike wonder what the state laws mandate as far as lunches and breaks are concerned. You might find it interesting to know that Texas is a state where employers are not required to give any lunch breaks or other breaks to employees
While there isn’t a state law on the books about lunches and breaks, there are applicable federal laws for Texans. Many people believe that they are entitled to a meal or break under federal law, but this is not the case. The federal law does offer instructions for employers as to whether or not an employee should be paid during these times if any meals or breaks are offered.
Short rest breaks (often 20 minutes or less) must not be deducted from an employee’s daily pay. Lunch breaks or other true meal periods are usually 30 minutes or more, and do not need to be counted or paid as work time. Employees must stop work entirely during this meal break in order for it not to be paid. If the employee is still required to do any work duties (even something as minor as answering a phone), it must instead be a paid meal break.
Federal law also contains other regulations of interest related to employee pay during times of waiting, sleeping and traveling. With the issue of sleeping time, an employee who is scheduled to be on duty for less than 24 hours is considered to be “working” even if he or she is permitted to sleep during some of that time. If an employee is working more than 24 hours, a sleeping period of up to eight hours may be deducted from his or her pay. However, this can only be done if sleeping facilities is provided and at least five hours of uninterrupted sleep may be achieved by the employee.
Many of us spend a lot of time each day in the car or traveling in some form of public transportation. Can any of this be paid as work time? The general rule is that time spent in the normal day’s travel to and from work is not considered paid working time. However, if an employee is traveling in the course of a day’s work, it must be counted as paid work hours.
A final issue I’ll cover in this blog entry is waiting time. In some situations waiting time should be paid, but not in all circumstances. If an employee is allowed to pursue personal interests while waiting for another task to be finished or while waiting at the workplace for his or her services to be called upon, it is generally counted as work time. However, if an employee is waiting to be called upon from home or elsewhere, but has great freedom to do what he or she wishes while on call (and has plenty of time to respond to the call), it is not generally considered paid work time.
A thorough listing helpful information on the laws related to lunches, breaks and other pertinent labor issues can be found on the Texas Complete Labor Law Poster.
Last 10 posts by Sarah
- Our New Community For HR Professionals, www.HumanResourceBlog.com Is Now Available - July 31st, 2007
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Posted by: Les Clifton
I am looking for something on labor laws. My mother works for Walmart in the garden department and is made to work out side in 100 degrees temp and not allowed to that any water are any other drinks when she are others are working.
The rest of the departments in the hole store in side are allowed to keep drinks
at the regesters, why should the garden center be any defrent knowing they are
in the heat.
She is afraid to say any thing because she has on other things in the past and her boss made it harder on her. If you can help, are give us advice please e-mail @
lclifton15@yahoo.com Bellmand TX
Posted by: Kami Reynolds
Hi. I am a 21-yr-old mom who works 48+ hours a week in a convenience store in Texas.
Our district manager told us that we are not allowed any break periods whatsoever….not even something as small as being able to sit outside and smoke a cigarette when we have no customers, even if all of our work is done.
Apparently, we are supposed to stand on our feet and work continually for 8+ hours a day with no break, no sitting, nothing.
Some people might say “oh, you work in a C-Store, it’s easy!” but it’s not. Especially when you have 3 herniated disks in your back, a bad hip, and an 8-month-old son at home who keeps you up continually (he was born nearly 3 months premature, so he sometimes still has difficulty with that sleeping through the night thing).
My husband, a 41-yr-old convenience store employee, is not treated so shabbily at his store (it’s a different company). Granted, he doesn’t get an official “break” either, but he is allowed to sit and rest when there are no customers.
We want to have another child, but we are extremely concerned about the laws regarding breaks in Texas. Seeing as I have given birth prematurely once, my risk of having another premature baby has gone up form the average 10-14% to a whopping 65-75%. When I had my son, I worked for an extremely busy Whataburger in San Antonio (another constant-standing job). We are very concerned that if I am not allowed 15 minute breaks or at least a few minutes to sit down, that I will have another high-risk baby.
What are the laws (pregnant or not) for convenince store employees…..and what are the laws for someone who is pregnant? Am I going to have to just suck it up? Or is there a better way?? I very much want another baby, but not if it would risk that child’s wellbeing and mine as well.
Any input whatsoever is appreciated!
Thank you!
Kami Reynolds
New Braunfels, TX
Posted by: Amelia
Hi Kami!! This isn’t what you asked, but the first thing that I am going to suggest is that with your physical problems, you look for a job that does not involve being on your feet all day. It may help if you take some classes at your local community college to improve your skills. As hard as it is right now to stand all day, it is going to be much more difficult when you are 30, 40 or 50 years old.
Many people who had no problem being on their feet all day at 21 find it physically challenging at 41. Even waiting tables, where you walk all day, can be less physically taxing than standing.
Now, to answer your questions…there is no law that an employer must give a worker breaks to sit in Texas (or under federal law.) This is strictly a matter of company policy. Many store owners would not mind, others want their employees in the store, in front of the cash register, the entire time.
Under ADA, the Americans with Disabilities Act, employers must make reasonable accommodations for workers with disabilites. If you had paperwork from your doctor certifying that you could not stand for extended periods, you might find your employer would be required to provide a bar stool or other seat behind the register for you. However, this would only be true if your condition met the EEOC defintion of a disability,and you could still perform the essential job duties. (This would be true, whether you were pregnant or not.) It could backfire, if the employer decided that it meant you were unable to perform the job, and terminated you.
Employers are not required to make any special accommodation for pregnant workers, that are not required for other workers with similar physical problems. For a more complete discussion, please post your questions at our sister site at http://www.laborlawtalk.com. HTH,and thanks for reading the blogs!~Ameila
Posted by: Tricia
Hello, my name is Tricia and I work full time at a car dealership as a cashier. I was curious about a few things they might do a little differently then at other places. I work every day but Wednesday(off day) from 1:30pm to 9:30 pm including every Sunday from noon to 5:00 (to sometimes even 6pm) and work every 3rd Saturday from 7:00 am to 5:00(to also 6pm alot). I am the only cashier scheduled to work on my scheduled days which means there are only one of us working in a day. I do not get scheduled breaks or lunches and they stated that if I wanted to leave for lunch I would have to come in an extra hour early making my schedule change from 12:30 to 9:30pm. They also do not allow many employees to hit overtime, which I know alot of employers are doing.
When and IF I do get the chance to go heat up my meal or grab a snack out of the snack machine they page me on the overhead and ask me to report back to the cashier station because I have a customer waiting. Which again allows me NO time to eat my food or ever barely have time to heat it up.
NOTE: I am pregnant and we constantly have to be standing up waiting on customers and if we aren’t busy with a customer we must be in the back filing paperwork which requires us to stand or sit on a hard floor or even a step ladder sometime and file. We stay pretty busy and I like working at this job but I feel like they are using and abusing my working schedule.
On Sundays when I work I get paid the same amout that I get paid on a regular work week.. I’ve heard that if you are working on Sundays you MUST get paid an extra hour.. is this true?? On Sundays, every Sunday, they have hotdogs and pizza for the customers which they stated we, the employees, are NOT ALLOWED to touch or eat at all or we would be “terminated”. Unless otherwise stated by the manager. and again no breaks for us.. we must bring our own lunch and “FIND TIME” to nit pick and eat it when we aren’t busy with a customer.
I’m stressed out and kind of thinking about looking for another job only because I am pregnant and this isn’t healthy or good for myself or the baby. Every one else gets lunch breaks and little small smoke or snack breaks and we are stuck back here slaving. I mean I cant even go to the bathroom without comming out and having 6 or 7 customers waiting on me to get back!!! How stressful, huh??
What should I do.. am I being mistreated or is this just how working is suposed to be? I tried looking online at the TEXAS WORKFORCE LABOR LAWS and got to scan through a few of the sites that give me NO info whatsoever but of course the sites that would have probably given me the useful info that I need were BLOCKED! and I couldnt even view them
Posted by: Amelia
Hi Tricia! Wow, your post raises a lot of issues. We’re going to try to address all of them, but first…
A few states have employment laws that provide all kinds of protections for employees. Texas is not one of them. There are relaitively few Texas employment laws that provide benefits for workers, other than the state minimum wage. So many of these answers are not going to be the ones that you would prefer to hear.
Texas has no break law, and federal law does not require any breaks for workers in general industry. OSHA requires that employees be permitted to use the restroom. Other than that, there is no requirement that you be allowed to leave your work station during the shift. A Texas employer could require that employees work 8, 10, 12 or even 20 hours with no meal break. And many do. The employer is under no obligation to allow employees to leave the premises for a meal. There is no requirement that employees be provided with a hot meal, or be permitted to heat a meal that they bring from home.
Under the law, employers must permit workers to drink water at their work station. Especially because you are pregnant, the employer should probably permit you to snack at your work station (which they do.) Our suggestion is that you pack healthy snacks and small meals that can be served at room temperature to eat during the day at your desk. We suggest sandwiches, salads, fruits and veggies, protein bars, trail mix, nuts, cheese, and milk in a thermos. It may make more sense for you to eat a full “dinner” at home before you come to work, and think of the meal you eat at work in the evening as “lunch.”
The job requirements don’t change simply because the employee is pregnant. Pregnancy is not necessarily a disability under the EEOC guidelines. If you are unable to be on your feet all or most of the day, your doctor should provide you with a note that says so. That may mean that you will have to take unpaid time off work.
There is no law in Texas that employees who work on Sunday must be paid at a higher rate, or for an additional hour. Nor is there in 95% of other states.
Employers can offer benefits to customers, that they don’t offer to employees. This includes offering free hotdogs and pizza. So, yes, they can terminate an employee who takes food from them. (If it’s any help, this is true at many jobs. Hotel employees are not permitted to use the hotel pool. Often bar employees are not permitted to drink there, even on their day off. It may even be wise for an employer to treat employees and customers differently.) Besides, hot dogs and pizza are not the healthiest foods for you or your baby.
We’ve noticed that a lot of misery is caused by the idea that “everyone else gets meal breaks and smoke breaks but we don’t.” Our mail shows that about 66% of employees receive no meal break, unless it is required by the state. (And, in states where unpaid breaks are required, about 25% of the employees wish they didn’t have to take one!) So the grass isn’t always greener.
Having 6 or 7 customers waiting for you when you come out of the bathroom is actually a good thing…it means the business is thriving, and your job is probably secure. If there was no one waiting for you, you might need to worry about being laid off due to declining revenue.
A great source for info on Texas employment laws is the Texas Workforce Commission at http://www.twc.state.tx.us/. Or, you can post questions for us to answer, or on our sister site at http://www.laborlawtalk.com. We do not believe that your employer is intentionally blocking sites with info about labor laws.
We don’t see anything in your post that suggests that you are being mistreated or that your job is especially stressful. Yes, most employees are expected to be productive pretty much all of the time. Work is not fun…that’s why they call it work. And it would be great if all states required breaks for workers…but they don’t. Sorry that we can’t offer more help. Please feel free to post any additional questions! And thanks for reading the blogs!~ Amelia
Posted by: Fayreen Lucas
Hello, I am a waitress and for 22 years at the same place we never even had the issuue of breaks come up.We have never been required to take a break, we just ordered our food or brought from home and would eat and get up and go wait on customers or carry out order that are ready or seat customers or go to the register and take money from a customer. While I understand the Texas laws now from your information I want to know if we are required to take a break. We have been bought by set of investors and they were taking away 15 min. a day from our pay checks and wage and labor came in and said they could not do that. They are in the process of paying us for that time. We draw as a waitress $2.13 per hour and depend on our tips for the rest of our wages. We can not ring up a ticket if we are clocked out and if we clock out another person will take our tables and then we do not get tips so therefore we have not pay. Are there any rules for a waitress that is different. Thank you. Fayreen
Posted by: Amelia
Hi Fayreen!
The short answer to your question is: No, the Texas break laws are not different for waitresses than for other employees.
In the past, you were taking meal breaks — you were just not clocking out for them. It’s not really fair to expect your employer to pay you, while you are eating.
There is no law that a Texas employer must give meal or rest breaks to workers. However, the employer can require that every employee clock out for a meal break of 20 to 30 minutes or more. The employer can discipline and even fire an employee who does not.
Under federal law, employees must be paid for any break that is shorter than 20 minutes, or any meal break where the employee is interrupted. That is why the employer was forced to pay you back for previous breaks.
Please stop interrupting your meal to serve food or make change. It’s unsanitary and a huge, huge violation of the health code in any state. (You don’t mention going to the restroom to wash your hands each time you got up to work.)
This is a situation faced by every restaurant in the U.S. The solution is for waitresses (and waiters, of course) to take meal breaks during the shortest part of the shift. Suppose you are working with a waitress named Sue. While you are clocked out on your 20 or 30 minute meal break, Sue watches your tables. She waits on any customers who are seated in your section and keeps the tips. Then Sue goes on break, and you take care of her section.
Over time, the tips will even out. HTH, and thanks for reading the blogs!~ Amelia
Posted by: James
As an employer am I required to allow an employee to clock out if he or she has no access to water or other beverage? At the work place there is a vending machine with bottled water but no fountains. If an employee has no change must I allow them to clock out with no penalty other than not paying them for the time they are gone?
Posted by: Amelia
Hi James! OSHA standards require that you provide employees with potable (drinkable) water in the workplace, without charge. It does not need to be bottled water. As long as the tap water in your area is safe to drink without boiling, that is sufficient.
OSHA can slap an employer who violates this regulation with thousands of dollars in fines.
There is no provision under the law for how to treat an employee when the employer violates this law. We would suggest that permitting the employee to clock out to get water is better than having them file an OSHA complaint. And, we would suggest that you begin to supply water in the workplace. You can post additional questions on our sister site at http://www.humanresourceblog.com. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Anonymous
I have a question regarding break time in Texas. if a company does allow breaks and they are less than 20 mins by law they have to be paid?
Posted by: Amelia
Hi Anon! If federal law applies, breaks shorter than 20 minutes must be paid. The federal FLSA or Fair Labor Standards Act applies to most companies because they engage in interstate commerce. For example, they accept credit cards or have an internet connection. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Hard work work
bad economy = worse working conditions. plenty of jobs are outsourced b/c other people are willing to deal with the back pain and other problems just so they can eat. americans in general have been spoiled and provided every opportunity to do something great with their lives. If you didn’t take advantage to bad. all you people do is cry when you don’t get your way or life is too hard. instead of giving your sob story and looking for sympathy, how about youget off your fat lazy ass and start busting ass before the economy completely tanks and you have nothing to eat.
Posted by: Amelia
HI Hard work! Sorry, we totally disagree. Many, many people are out of work right now through no fault of their own. The current financial crisis is a result of a number of factors including deregulation of the mortgage and banking industry (espeically mortgage derivitives), privitization of retirement funds, the resulting inflation of stock and real estate prices, corporate greed, irresponsiblity and in some cases malfeasance, excessive consumer credit and spending, and diverting federal funds from domestic infrastructure to an expensive foreign war.
Unfortunately, the bad economy affects every one of us, even if we did not contribute to the causes.
Every day we receive comments and questions from hard workers who would take any job if they could find one. In any situation, it is very easy to blame the victims — until you become one of them. Then,it is easy to see that every issue has at least two sides. HTH, and thaks for reading the blogs. ~ Amelia
Posted by: Jason
Hello–
I work for a company call center where we are broken up into units. Everything we do on the phones is monitored–talking time, hold time, etc. All of this is assigned a score based on our performance. Call center managers are held responsible for these performance scores by managers and competition with other units is a huge focus. Technically we are allowed up to 15 minutes of “not ready time” per day–which can include going off line to document a call or to use the bathroom if necessary. This is not always necessary but sometimes it is.
Although this time is supposedly built into the performance rating system, there is huge pressure from managers and co-workers to not use this “not ready time” to keep unit percentage scores high (anything under 95% of the time on the phone is “failing”)–which ends up with people guilt tripped into not using time to wrap up calls—or even to use the bathroom until they are on their breaks. It even got to a point where our manager was having us document when and how long we are in the bathroom (if we chose to go at all). I found this highly demeaning.
I understand the need for monitoring performance and making sure people are doing their job, but I resent being treated like a child and being made to feel guilty because I choose not to turn yellow (or any other color) between breaks.
Is it a violation of Texas state law to indirectly not allow people to use the bathroom by setting up a system that compromises their job performance/security if they do so–or that subjects them to retaliation by supervisors and co-workers if they decide to take time to use the bathroom as needed?
If so, how can I submit a complaint? Thank you! Jason
Posted by: Amelia
Hi Jason!
OSHA worker safety regulations require that employers supply bathrooms, and that employees be permitted to use them when nature calls.
The kind of subtle pressure that you describe is probably a grey area. If the unit manager told the employees “you can’t go to the bathroom” that would be one thing. But trying to influence the employees to be more productive by minimizing bathroom breaks, is another.
However, when the manager requires that employees log their bathroom breaks, that may have crossed the line. You can certainly report this conduct to OSHA at http://www.osha.gov.
You are right that these procedures are demeaning. Unfortunately, call centers are rapidly becomming the sweatshops of the 21st century. Our suggestion is to try to find a different employer (and perhaps a different line of work) when the economy picks up a bit. HTH, and thanks for reading the blogs!~ Amelia
Posted by: lucas law center
Lots of companies do provide a 30 minutes break and only works 8 hours a day.
mabell
Posted by: Amelia
Hi Mabell! Of course you’re right! The majority of Texas employers do provide employees with a 30-minute unpaid meal break. However, there is no law that they must do so. HTH, and thanks for reading the blogs!~ Amelia
Posted by: k
i work at a very large convenience store in Texas. we are off the interstate and are constantly busy. i work two 12 hour shifts on the weekends and our boss recently took our breaks away from us.. which was only 15 minutes. this is legal im hearing, but im not seeing how its right.
Posted by: Amelia
Hi k! We agree with you. Nineteen U.S. states have laws that require employers to give meal breaks to workers. Unfortunately, Texas does not have such a law. As you point out, the employer has the legal right to do this, but it is not right. OSHA regulations require that employees be permitted to use the rest room when nature calls, and to drink water on duty. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Cathy
Hi,
I work at a call center now. I used to be a graphic/website designer, but due to the horrid economy in central Florida I had to take what I could find. This place is an awful place to work, I have never felt so degraded.
My employer REQUIRES all employees to clock out if they have to use the restroom and we get punished financially in other ways if we do use the restroom. Most of us don’t drink anything all day for fear of having to use the facilities. Is the employer legally allowed to treat their employees this way?
Posted by: Amelia
Hi Cathy! We have sympathy for your situation — call centers are rapidly shaping up as the sweat shops of the 21st century.
This employer’s actions are a gray area. OSHA regulations require that employees be permitted to use the bathroom — which you are. The employer can legally require that you clock out for bathroom breaks. If the employer is covered by the federal FLSA or Fair Labor Standards Act, employees must be paid for any breaks (including bathroom breaks) of less than 20 minutes. The way most call centers avoid this is by establishing productivity criteria that can only be met if the employee takes few, if any, bathroom breaks. There is no law against this.
You did not ask, but we will add that it is fairly easy to find freelance work as a graphic or website designer online. Sites like http://www.guru.com and http://www.elance.com permit people with skills to bid on projects. Our recommendation would be that you use them to find work in your spare time. The great thing about these sites is that your location is irrelevant. You can work for companies in New York, Chicago or Ames, Iowa that need web or graphic design. Hopefully in a few months you will have enough work in that field so that you can quit the call center job. HTH, and thanks for reading the blogs!~ Amelia
Read more about this at: http://www.dol.gov/esa/whd/regs/compliance/whdfs64.pdf
Posted by: Billy
RE: Federal Labor Laws
My employer is global. We sell products to every continent, therefore we are an interstate company.
Do Federal Laws apply to the lunch/break issue? If they do, can you tell me what they are?
Thanks,
Billy
Posted by: Amelia
Hi Billy! If the company is in Texas, because they do business in other states, they must abide by both Texas and federal laws regarding meals and breaks.
Federal law does not require that employees be given any meal or rest breaks. (OSHA regulations require that the employees be permitted to use the bathroom, and to drink water while working.) However, the federal FLSA or Fair Labor Standards Act requires that if an employee is given a rest break of less than 20 minutes, the employee be paid for that break. If an employee is given a meal break of more than 20 minutes, and the employee is relieved of all duties during that period, the meal break can be unpaid.
Nineteen U.S. states have laws that require employers to give meal breaks to workers. Texas does not. Whether or not a Texas employer gives meal or rest breaks is entirely a matter of company policy.
A Texas employer may establish that employees are required to take breaks, and discipline or terminate any employee who does not comply. But there is no law that the Texas employer must give such breaks. HTH, and than ks for reading the blogs!~ Amelia
Posted by: linda
we live in Texas my boyfriend works construction on highrise building we are talking laying brick on 20 story or more building he has to bring his own water and the forman told him they get no breaks. I know texas law doesnt make them let you have breaks but what about osha what if you get hot in the 100+ degree weather and get dizzy and fall off the building isn’t there some type of safety issue here.
Posted by: Amelia
Hi linda! Yes, you are correct, there are OSHA issues here. The employer must provide water for employees to drink. even on a construction site. Most employers use big, yellow coolers to do so. (It does not need to be bottled water. Tap water is fine.) You are also correct that frequent breaks are called for in extremely hot conditions like Texas in the summer. Your boyfriend should show his supervisor the info below. If there is no change, he should file a complaint with OSHA. They will inspect the worksite and require the employer to follow worker safety regulations. HTH, and thanks for reading the blogs!~ Amelia
Read more about this at: http://www.osha.gov/Publications/osha3154.pdf
Posted by: Terry
Who do we contact to have the law changed? I know TX is a (work at will) state. Which is inhumane to say the least. Why does Federal and state law allow employers more rights than the employee? Why is Tx a (work at will) state to begin with? Why hasn’t something been done to give the workers humane rights to step away for breaks? I am sure your employer allows you to do so. Try yourself to see how far you can go doing this. It is a legitimate complaint that should be addressed and changed. The lawmakers obviously don’t care, let them try working under those conditions, they won’t because they can’t handle these conditions themselves. Who do we write? I think Tx should become a Union state, all you folks being treated this way should start a petition and send it to the state goverment, congressmen, Senator and even the president. They are more worry about saving the planet, global warming, health care ( which any persons health would decline under these conditions), economy, and want regulation on what we buy to eat and drink that they consider unhealthy or a luxury, ie: soda and sweets, potato chips fries, burgers, wanting to tax more on sugar foods, liquor, cigaretts. Pretty much control what you eat, drink, or buy, But its ok to lack common courtesy for a law to be put in place for breaks or lunch, but they allow employees in American that are working to be madatory taxed which also supports your pay, the goverment, your state, economy, roads and highways, bridges, attorney general, police, national security, the state and federal employee’s, judges, welfare, unemloyment, senators, mayors, schools, shall I go on?… social security ( which they have almost depleted) for their own gain. Deficet… Am I mad? You betcha. They talk about reforms for everything else except employers treating the employees with some dignity, compassion, the basic human needs, letting the employer drive them to their grave before having to collect a pension or social security, (which they paid into) American employees are being USED!! Lets raise retirement again so we croak working. Bet yall save money along with the employer. Thats a clear message… Anybody agree?
Lets see if your honest enough to post this, or is the truth too much?
Posted by: Amelia
Hi Terry! Actually, we agree that there should probably be a federal break law. At this point, 19 US states require that employees be given meal breaks but only 6 require shorter rest breaks.
OSHA standards require that employees be permitted to use the toilet when nature calls and to drink water during hot weather.
If you would like to get a state break law passed in Texas, the best place to start would be contacting your representatives in the Texas legislature. It may also be helpful to get involved politically and/or circulate a petition. (Hint: one political party tends to be more pro-employee, and it’s not the Republicans.)
Another option would be to move to a state that offers more protection for employees. Many states such as Connecticut, Illinois, Massachusetts, Colorado, Kentucky, Delaware, Maine, Minnesota and Nebraska offer breaks in additon to other perks (such as a higher minimum wage) to workers. California has by far the most pro-employee laws, while Texas, Alabama, Mississippi, Louisiana, Tennessee, South Carolina and Florida have the least employee-friendly laws.
There is really no such thing as a “union state.” Belonging to a union is legal in all 50 states, and very few states allow employers to mandate it. So starting or joining a union would be another option. We will note that states with more union employees tend to have better benefits.
Nearly every state has the “employment at will” policy, which was handed down from feudal England like most of our legal concepts. “Employment at will” actually protects the employee as much as the employer, by permitting the employee to quit at any time, for any reason or without reason, with or without notice. However, several states including California set severe limits employers who try to terminate employees under “employment at will.” HTH, and thanks for reading the blogs!~ Amelia
Posted by: Cathy
Hi I posted before. I just wanted to let you know that the same employer is now not allowing people to use the restroom. In other words, if you try to go ‘pee’, you are walked back to your seat!!!!!!! They say YOU ARE NOT ALLOWED!!! This can’t be legal. There can’t be a gray area here. I saw one employee tell the owner to her face that she had to pee, she told her 3 times and was forced to go back to her seat.
Posted by: Amelia
Hi Cathy! You’re right — this is NOT a gray area! OSHA regulations require that employees be permitted to use the toilet when nature calls. They can be asked to wait a few minutes (for example, for a supervisor to take their place on a factory floor) but they must be permitted to use the restroom. Contact OSHA at http://www.osha.gov and file a complaint about this. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Mickey
Hello.
I’m sure you’ve answered this question already. Sorry. My husband is a city worker (waste water). Throughout the summer he works in extreme heat. There are days when he has to work without a lunch break and/or small breaks. Is there no law to protect him?
Posted by: Amelia
Hi Mickey! Well, yes and no. As you know, Texas has no lunch or break law. However, OSHA (the federal Occupational Safety and Health Administration) handles worker safety in Texas, for state employees as well as those in private enterprise. OSHA’s worker safety standards for employees working in extreme heat include frequent breaks, preferably in an air-conditioned vehicle or building. Our recommendation is that you contact OSHA at http://www.osha.gov regarding their standards. We used to live in Texas, and trust us, it qualifies as “extreme heat” in July! HTH, and thanks for reading the blogs!~ Amelia
Posted by: Darrel
Hi I work out at a intermodal loading facility in the heat. At times it takes my boss several hours to get a water jug out to where i’m working at. The other day i got sick from heat exhaustion due to the fact that i couldn’t drink the water cause i had no way of getting it out of the jug.
How can we change this law about breaks here in texas? I moved here from another state.
thanks alot
Posted by: Amelia
Hi Darrel! The best way to pass a Texas break law is for you to contact your state representatives. However, OSHA regulations require that employers take steps to prevent employees from getting heat stroke, especially in hot weather. The employer must provide drinking water during the entire shift and in some cases suitable breaks in a cooler location. Contact OSHA at http://www.osha.gov about this. Also, if you got heat exhaustion, you should fill out a workers’ comp report on that, and file a claim. We can almost guarantee that the employer will take steps to ensure that does not happen again. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Marguerite
My husband was fired for sleeping on his lunch hour. He works in Texas and is not paid for his lunch hour. The company does not allow workers to leave the work or break area during lunch hour, so he could not go elsewhere to nap. Since it is unpaid time and he is not responsible for doing any work isn’t his lunch hour his free time and not company time? Can the company legally tell him what he can and cannot do on his lunch hour?
Posted by: Amelia
Hi Marguerite! This is a very unusual situation, but probably a lawful one. Yes, the employer can set limits on what an employee can or cannot do on his lunch hour. For example, an employee cannot rebuild the engine on his car, or even change the oil, on his lunch hour.
But we will say…are you sure you’re getting the entire story? Is it possible that your husband forgot to clock out before falling asleep? Because most employers would permit sleeping on the employee’s lunch hour. Another option is that in the employer’s opinion, this nap indicated that your husband was in no condition to work because he was too exhausted. That would especially be a safety hazard if he operates machinery or drives for a living.
Nevertheless, an employer in Texas can fire any worker at any time for any reason or without a reason, as long as the employer is not engaged in illegal discrimination. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Marguerite
My husband is an IBEW member and works under the union contract. I just got the contract rules to look at and all they say is that the workers get a 30 minute lunch break sometime between 12 noon and 1 pm. They do not clock in or out because the foreman in in charge of keeping track of their time. He believes they simply were looking to lay people off and do not want to pay unemployment.
Posted by: Melissa
Recently, my employer has been cutting my pay by 30 minutes for not clocking out for lunch after 8 hours of work. The place I am working at is in Texas, but the main office is in California, Which laws apply to me and can I get paid for the time I did not clock out?
Posted by: Amelia
Hi Melissa! You are covered by Texas employment laws, including the minimum wage law. The state and federal minimum wage laws require that you be paid for all the time you work. If you are not taking a break, then it is unlawful for the employer to deduct it from your time.
The employer can require that all employees take an unpaid 30-minute break on an 8-hour shift (even though Texas law does not require this.) The employer can discipline or terminate an employee who does not take a break. However, the employer must pay the employee for all time worked. Employers cannot refuse to pay hourly workers as a disciplinary measure, or dock their pay as a disciplinary measure.
File a wage claim with the Texas Agency for Workforce Development if the time is being deducted from your time card.
If you are taking a break, but just neglecting to clock out, then the employer’s actions are lawful. The employer has to pay you for all time worked, not all the time you are on the clock. Under federal law, employees must be paid for any breaks shorter than 20 minutes. HTH, and thanks for reading the blogs!~ Amelia
Posted by: krish
Message
I am working with a company since last 1.5 yrs. my company havenot paid me what they told to pay me since last 8 monhts. And they told that i will pay all the remaining money later on. now because of some reason they gave me lay off before a week. and they are not ready to pay my wages which they told to pay before. Now what to do?how to take my right…
please give me advise. and give me wny good lawer contact number.
plz
Thanks
Posted by: Amelia
Hi krish! This is a tough situation. The good news is that you probably don’t need an attorney. You should file a wage complaint with the Texas Workforce Commission at http://www.twc.state.tx.us/customers/jsemp/jsempsub8.html . They will investigate the claim for you, and get the employer to pay any money you are owed. You should also apply for unemployment benefits as soon as possible.
Just a word to the wise — no employee should ever let an employer get 8 months behind in payments. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Krish
Thank you very much Amelia for your reply.
Can you plz tell me how much time they take to investigate this. ?
Also i cannot get unemployement because i am not a citizen of USA.I am here in work visa.
Posted by: Amelia
Hi Krish! It can take week or months for the TWC to investigate a wage complaint. However, they usually make contact with the employer within days. In many cases as soon as the employer knows they are being investigated, they will pay up. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Nicole
I was just wondering. I have a job that is an 8 to 10 hour workday and I am not allowed ANY breaks! Apperently if you get caught taking any kind of break you can get fired! I live in Texas, and Work at a hotel as the front desk clerk. Can anyone help me?
Posted by: Amelia
Hi Nicole! Sorry, but we probably cannot help. Nineteen U.S. states have laws that require meal breaks for nearly every employee. Unfortunately, Texas is not one of them. There is no Texas law requiring meal or rest breaks for any workers. Federal law provides breaks only for certain employees, such as airline pilots and interstate truckers.
However, OSHA worker safety standards require that employees must be permitted to use the rest room when nature calls. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Chief
As you know, nearly every public agency in Texas is only open Monday through Friday, usually between 8:00 am and 5:00 pm, and sometimes only 9:00 am to 4:00 pm. How does one who works these same hours conduct personal business at a public agency when they are required to be at work and are threatened with being fired if they need an hour or two to conduct such business? If they can fire someone for this, can they also fire someone for trying to conduct some of this business over the phone while at work, because they are not allowed to use the phone at work?
Also, what protection is there for a single parent who gets a call from their child’s school saying that their child is sick and needs to be picked up and is told that they will be fired if they leave work to go tend to their child?
Yet, the manager, who is single and has no kids, and is the one threatening the firing, can drop everything for her family and basically do what she wants.
Posted by: Amelia
Hi Chief! You bring up some excellent points! In many states, offices like the DMV are open on Saturday. In Texas, as in several states, licenses can be renewed online. Unfortunately, many employees have to use vacation time to take care of these types of personal business.
To answer your question, yes, an employer can fire an employee for missing work for personal business, just as they can fire an employee for conducting personal business over the phone. Some Texas employers will give a worker an unpaid day off if requested in advance…but not every employer will. And there is no law that they must.
Several states have family leave laws that allow parents to use sick time to care for children, or to take time off for school events. Unfortunately, Texas has no family leave law. Contact your state legislator and let him or her know you think that law should be changed.
Most Texas employers are very fair, but a few treat employees unfairly. Some Texas employers believe that “rank has its privileges” and that they can take off anytime they want. Others treat employees much better. Our suggestion would be that you look for a different job, when the economy picks up. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Brett Cummings
Kami, first of all QUIT smoking it’s not good for you or your baby. With 3 herniated disk and a bad hip at 21 would lead me to beleive your are well overweight….so start exercising. Lastly you choose the job you have, therefore you must abide by the policies that company has in place. Texas does not have meal or break laws persay…If you do not like it then do something about it…get an education to better yourself and the lives of your baby now and the ones you want so badly in the future.
Posted by: Amelia
Hi Brett! You bring up some good points. However, we have to mention that some people who exercise are still overweight, and some people who never exercise are not overweight. So there is not a direct correlation between the two.
Your advice that Kami get an education is excellent. You might avail yourself of one, as well, so you know how to spell “per se” correctly. HTH, and thanks for reading the blogs!~ Amelia
Posted by: darah
Hi, me and my boyfriend are both 17 and we both work, and he gets breaks and I do not. He is a cartpusher at a major discount retail chain, and says that there is, hanging up in the break room, a sign that says Texas mandates a 15 minute break for a 4 hour shift, and a 30 minute lunch for a 6 hour shift. However, I work at a major pizza chain restaurant, and never get a break. I’m fine with it, because he needs the break way more than I do (I usually work 4-5 hours as a CSR). We’ve been arguing back and forth about this, so I hope you can get this to rest- did Texas used to have a law providing breaks? He has a picture of the sign on his phone. thanks (:
Posted by: Amelia
Hi darah! No, Texas never had a law requiring meal or rest breaks. Nor is any such poster required under Texas law. Some states have break laws only for employees under 18, but Texas does not (nor did it ever have such a law.)
The federal FLSA requires that employees be paid for breaks shorter than 20 minutes. Meal breaks of 20 minutes or more can be unpaid. However, that law does not require that employers give breaks to workers — it only establishes which breaks must be paid, if breaks are given.
Nevertheless, break laws are a minimum standard. An employer can require workers to take breaks per company policy. Your boyfriend’s employer can establish one policy, and your employer can establish another break policy. Our best guess is that your boyfriend’s employer has a meal break policy, and has a poster in the break room explaining it. The poster may even suggest that the breaks are state law in Texas, but they are not. (Nineteen other states do have meal break laws for employees over 18.) HTH, and thanks for reading the blogs!~ Amelia
Read more about this at: http://www.twc.state.tx.us/ui/lablaw/paydaylaw_faq.pdf
Here is a list of all the states with break laws from the US Department of Labor: http://www.dol.gov/whd/state/meal.htm#Texas
Posted by: Mertice Weeks
I am retiring after 36 years on 1 job. My employer says I will not be paid for my 30 days of accumulated sick leave. Is this right?
Posted by: Amelia
Hi Mertice! Unfortunately, what is legal and what is right are often two different things. There is no state where employers are required to pay wokrers for unused sick time at termination. Very, very few employers do so unless they are forced to by a union contract. Sorry, wish we had better news for you. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Karen
I understand you do not get lunch or breaks under Texas law, and that employers can require you to take a break or be fired. I have a supervisor tell me I am breaking the law if I do not take a 30 minute lunch break when I work 6 or more hours. Also we have down time where there is nothing to do and we are asked to clock out usually for an hour or so and wait in the breakroom for a scheduled download. We should be paid for this, or sent home, correct.
Posted by: Amelia
Hi Karen! You are somewhat correct. Texas has no break law, nor is there any federal law that requires meal breaks in most industries. So when the supervisor says that if you do not take a meal break on a 6 hour shift you are breaking the law, that information is incorrect. It may be a violation of company policy, but it is not a violation of Texas or federal law. Nevertheless, what he really means is if you do not take the break, you can be terminated.
(Not that it matters, but in states that require a meal break by law, if the employee refuses to take the break, it is the employer who is breaking the law. But we will add, that an employee does not win this type of argument with the supervisor. Regardless of the facts, confronting the supervisor on this matter is a bad idea.)
You are generally correct about the waiting time. Under the federal FLSA or Fair Labor Standards Act (and Texas minimum wage law) time spent waiting for work on the employer’s premises must be paid work time. However, the employer could require that you clock out for your 30-minute meal break at this time — employers are permitted to schedule breaks around work flow, at the employer’s convenience. The employer could even require that you clock out for a 60-minute meal break on that day, and that you do so at the time that is convenient for the employer. But once that period is up, you should clock back in and be paid — even if you have no work duties to complete until the download is finished.
If you have already taken your meal break for the day before the download begins, you cannot be required to clock out and wait for it to finish. Any waiting time on the employer’s premises must be paid. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Scott
I am a non-exempt employee working in Texas. I was sent to training all week. I traveled on Sunday, which is usually my day off and returned very late on Friday (11:00 pm). My hours are usually 7:30-4:00 pm M-F. Should my employer pay me for the hours on Sunday and the the late hours on Friday?
Posted by: Amelia
Hi Scott! The travel time regulations of the federal FLSA or Fair Labor Standards Act are complex. Basically, when you travel you must be paid for all the time that you work. If you work more than 40 hours in the payroll week, you must be paid overtime. However, not all time spent traveling is counted as work time.
Under the FLSA, you must be paid for travel that occurs during your normal work hours of 7:30 am to 4:00 pm, even on Saturday and Sunday (which are not your normal work days.) This also includes waiting time, such as time spent at an airport waiting for a plane. So if you took a taxi to the airport at 10 am on Sunday, and arrived at the hotel at 2 pm, you “worked” for 4 hours.
However, under the law you need not be paid for some travel that occurs outside of your normal work hours. This would include being a passenger in a plane, taxi, car, etc. In the example above, if that trip occurred from 5 pm to 9 pm on any day of the week, it is not work time and you are not entitled to payment for it. (Many people see this as unfair, and a loophole in the law.)
Time spent actively driving (or flying a plane, for that matter) is work time. So if you drove for 4 hours to arrive at your destination, that is work time and you must be paid for it, whether the trip began at 10 am or 5 pm. (Do you see what we mean when we say that the regulations on travel time are complex?) Fortunately, the U.S. Department of Labor has an online tool to help sort out what travel time counts as hours worked. See the link below. HTH, and thanks for reading the blogs!~ Amelia
Use the eLaws Advisor for hours worked here, to be sure you are being paid all the wages due:
http://www.dol.gov/ELAWS/
Posted by: Jean
Message I am interested to know what the laws are for a person that is being taken from a paid salary to a commission basis. If the boss requires you to be in the office what work are you required to do? the same as you did when you were paid bi-monthly? I work for a interior design company and need to know what to expect. I love the job but worry now that the job is to be commission only.
Posted by: Amelia
Hi Jean! If you have concerns about the commission-only structure, you may want to quit rather than accept it.
There are no state or federal laws regarding what duties a commissioned salesperson can be expected to perform. The best practice in most industries is for a salesperson who is working on straight commission to use his or her time on sales and sales-related activities (like completing sales reports.) However, there is no law that specifically requires this.
You could use this opportunity to renegotiate your job duties with your boss, by pointing out that if you are 100% commission, it is really not fair to ask you to perform non-sales-related duties like general paperwork, sweeping the floor or whatever. You may also want to try to negotiate a more flexible work schedule.
Under federal law, a commissioned salesperson must still be paid at least the minimum wage for all time worked. Generally, a salesperson who is paid solely on commission is not eligible for overtime.
When an employee quits rather than accept a significant change in working conditions, the employee usually qualifies for unemployment benefits. A switch from salary to straight commission is a significant change. However, if you work one day under the new arrangement, then you have accepted the new working terms. If you quit after that point, you would not be eligible for unemployment benefits. HTH, and thanks for reading the blogs!~ Amelia
Read more about this at: http://www.dol.gov/compliance/topics/wages-commissions.htm and http://www.dol.gov/dol/topic/wages/commissions.htm
Posted by: nirali
Message
I am working with a company since last 1.5 yrs. my company havenot paid me what they told to pay me since last 8 monhts. And they told that i will pay all the remaining money later on. he only paid me 50% checks. now because of some reason they gave me lay off before a week. and they are not ready to pay my wages which they told to pay before. Now what to do?how to take my right…
The texas work force only can handle case for 6 months back.. but my pay is before 1 year..so what to do..and what is the proof i need to have to get my money back..
please give me advice. and give me good lawer contact number.
plz
Thanks
Posted by: Amelia
Hi nirali! It sounds like for the last 8 months, your employer has paid you only 50% of the wages that you were promised. This is illegal. You are correct that the Texas workforce commission can investigate only wages for the past 6 months. However, that is better than nothing. You should file a complaint with them.
If the amount the employer was paying you for the past 8 months was more than the minimum wage of $7.25 per hour worked, it is going to be difficult for you to prove that the employer owes you more. The employer will likely argue that 6 months ago he reduced your wages, and that by continuing to work for the lower wages you accepted them.
Unfortunately, we cannot recommend an attorney by name. But you should be able to find an attorney specializing in employment law in your phone book. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Lynn
Great posts! Here’s a delicate one for you, from an employer. I understand that Texas law does not mandate breaks, but Federal law requires employers to pay employees for breaks shorter than 20 minutes.
We have an employee we’ll call Regular. Regular works on a crew of two. Each morning the crews get ready, and leave to perform billable work away from the office. (Crews are paid for both billable and non-billable time.) Each morning Regular does his “business” for a predictable 15 minutes. Meanwhile, his crew partner waits, so they can leave for the job together.
Regular is a very good employee.
We are in complete support of Regular taking care of his needs. However, there’s a strong possibility that he’s also reading on this morning break. More importantly, he’s frustrating his crew mate by making him wait. We estimate we spend over $2000 in non-billable pay to Regular and his crew mate each year, just on this bathroom break. (This has been going on for a long time.)
Finally, my question: if Regular is not ready to go with the crew, may they leave without him, requiring him to take his own vehicle to the job site? And may we refuse to pay his mileage, since he is making this choice on a daily basis? (We reimburse mileage when the company needs for them to use their own vehicle.)
Also: Is it legal to say “Hey, if you’re reading in there, we need you to do that on your lunch break,” or “It’s OK to choose to take care of personal business at work, but this choice may cause you to miss your ride to the job site?”
Thanks you very much for your help on this delicate but frustrating topic.
Posted by: Amelia
Hi Lynn! Okay, just to clarify, using the toilet is not personal business. Personal business is when an employee uses company (paid) time to pay bills, make doctor’s appointments, renew their driver’s license, etc. We appreciate your southern modesty, but it’s okay to call it going to the bathroom, or using the toilet.
OSHA worker health and safety standards require that employees be permitted to use the toilet when nature calls. So no, you cannot tell your employee “It’s okay to choose to take care of personal business at work, but…” Most people don’t have the option of timing their bowel movements around their work schedule. (This is a little like demanding that female employees have their monthly periods only on their days off so they don’t spend too much time in the bathroom.)
Different people have different bowel habits. Some people are very, well, regular, and find they urgently need to use the toilet at the same time every day. This is not a premeditated attack on the employer. Others are not so predictable in their bathroom visits. The amount of time the employee needs to use the toilet also varies a great deal. (For some reason, men seem to need more time in the bathroom as they get older. We refuse to speculate about this.) The number of times per day that employees use the toilet also varies.
The assumptions you seem to be making are that a) this employee does not genuinely require all this time to use the toilet and b) that he could choose to use the toilet at a different time, if necessary. Those assumptions are not necessarily valid. In fact, there is no evidence at all to back them up. (It may be that he is reading because his bowel movements take a long time, rather than he is reading just to waste time.)
It sounds like this situation is very frustrating to you and the other managers — to the point that you have calculated how much money this bathroom break costs the company on an annual basis! However, probably every employee in the company takes at least one bathroom break per day. Other employees may be spending a comparable amount of time in the toilet spread over the course of a day, rather than in one longer visit. So in reality, this employee is not costing you any more than other employees.
Our suggestion is that you focus your attention on the problem — the crews not leaving on time. A male manager should have a frank discussion with this crew, or even all the crews, that they need to leave on time each morning. He should also mention that while it’s okay to use the toilet, reading, talking on the phone, etc while in the bathroom are not acceptable. If the problem continues, the male manager can have a private conversation with the employee “Hey Regular, I noticed you always seem to be in the bathroom when it’s time to leave, what’s up with that?” If the employee is able to change his bathroom habits, he probably will at that point.
You can enforce this “no reading in the bathroom” policy if you like. You need not allow employees to take books, newspapers, magazines, or bags containing them into the toilet. However, there is a good chance that even if the employee stops reading, his bathroom visits will take just as long. (You do not say how long the drive to the jobsite is, but it is possible that if you make this employee skip his bathroom visit, he will have an accident on the way. Won’t you be proud of yourself then?)
If the problem still continues, yes, you would probably be within your rights to send the other crew member on his way and let Regular make his own arrangements for transportation to the job site. There is no OSHA requirement that co-workers must stop working while an employee uses the toilet. However, be aware that you may be required to make reasonable accommodations under ADA if these extended bathroom breaks are due to Irritable Bowel Syndrome or another disability.
Overall, it may make more sense for you to ignore the problem. Instead of thinking, “There goes Regular and his crew, 15 minutes late again” think “Well thank goodness he got that out of the way! Now he can be productive all day long, and focus on work uninterrupted.” You say that Regular is an excellent employee, so maybe it would be better to focus on his good qualities, rather than his one flaw. HTH, and thanks for reading the blogs!~ Amelia
Posted by: Carla
Can an out of country company that just bought the majority shares of a company in Texas demand that the employees lose weight or they will be fired?
Posted by: Amelia
Hi Carla! Unfortunately, yes, this would most likely be legal. The employees could certainly hire a lawyer to file a wrongful termination suit, and they would probably qualify for unemployment, but this might very well be legal. There is no Texas or federal law that protects an employee’s right to be overweight. (A few states have laws against firing someone for body size — Texas does not.)
Firing overweight people is not illegal discrimination. However, if this policy has a disparate impact on a protected group, then it might be illegal. Suppose that almost all of the African American or Caucasian employees were in the group fired, while none of the Asian employee were. This would most likely be discrimination based on race or national ancestry, which are illegal under federal law.
We applaud employers who offer incentives for employees to be healthy. Sometimes there is a valid business need for a certain level of physical fitness, as with firefighters. But this policy seems to take things too far. Nevertheless, it is legal at this point. HTH, and thanks for reading the blogs!~ Amelia