Construction runs on long days, and in Texas those days often stretch well past 40 hours a week during peak season. When the paycheck doesn’t reflect that extra time, workers usually aren’t sure what the law requires or where to turn. It’s a common problem. In “Behind the Texas Miracle,” a survey of more than 350 workers on large job sites in Austin, Dallas-Fort Worth, and Houston, the Workers Defense Project and the University of Illinois Chicago found that one in five reported wage theft, and the U.S. Department of Labor’s Wage and Hour Division reports recovering more than $35 million in back wages for over 17,000 construction workers nationwide in fiscal year 2023.
The good news is that Texas workers have two separate routes to recover unpaid wages, one through the state and one through federal law. Each has its own deadlines, remedies, and strengths. Picking the wrong one, or waiting too long, can cost you money you’ve already earned. Here’s how the system works and what you’ll need to make a claim stick.
Texas Relies on Federal Overtime Rules
Texas doesn’t have its own overtime statute. Overtime for most private-sector workers comes from the federal Fair Labor Standards Act (FLSA), which requires at least 1.5 times your regular rate for each hour over 40 in a workweek. The FLSA looks at the workweek as a whole, so a 12-hour Monday followed by short days later in the week may not trigger any premium at all. What does matter is that every hour you actually worked gets counted, no matter which site you were on.
The Texas Payday Law, in Chapter 61 of the Texas Labor Code, addresses a different issue. It requires employers to pay employees in full and on time and sets basic rules for when paydays occur. Workers who aren’t exempt from overtime must be paid at least twice a month, and employers have to post their paydays where employees can see them. If no paydays are posted, the law treats the 1st and 15th of each month as the default.
Where Construction Overtime Usually Goes Missing
Most unpaid overtime on job sites doesn’t start with a missing paycheck. It starts with hours that never make it onto the timesheet. Under the federal rules on compensable hours worked, travel from one job site to another during the workday counts as work time, and so does time spent waiting when you’ve been told to stay ready. Short rest breaks of 20 minutes or less must be paid, while a meal break is unpaid only if you’re fully relieved of duty for roughly 30 minutes or more.
That creates several familiar problems in construction. A foreman might ask a crew to load materials at the yard before driving out, then start the clock only when work begins on the slab. Another common pattern is paying straight time for every hour, so a worker gets the same hourly rate on hour 50 as on hour 5. Crews that move between two projects run by the same contractor can also lose overtime when each site tracks hours separately and never adds them together for the week.
Your Time Records Usually Decide the Case
Wage disputes almost always turn on proof of hours. Employers covered by the FLSA have to keep accurate records of hours worked each day and each workweek, along with pay rates and total overtime earnings, under FLSA recordkeeping requirements for employers. Payroll records must be kept for at least three years, and the time cards behind them for two. If the employer’s records are incomplete or wrong, the U.S. Supreme Court’s decision in Anderson v. Mt. Clemens Pottery Co. lets a worker prove hours through reasonable estimates, and the burden then shifts to the employer to disprove them.
You shouldn’t rely on the employer’s records alone, though. Keep your own log with the date, the site, your start and stop times, and any travel between locations, and snap photos of sign-in sheets when you can. Save pay stubs, text messages from supervisors about schedules, and notes on any payments made in cash. A simple notebook kept consistently can carry real weight when the company’s version of events doesn’t match yours.
Filing a Wage Claim With the Texas Workforce Commission
The state route runs through the Texas Workforce Commission (TWC), and it’s free. The catch is timing, because the Texas Payday Law’s 180-day deadline runs from the date the wages were originally due, and the date you first noticed the shortfall doesn’t change it. TWC uses the date it receives the claim to decide whether it’s on time, and if only part of what you’re owed falls inside that window, you can claim just that part. You can file online or on a paper form in English or Spanish, and you’ll need to list each type of unpaid wage and show how you calculated it.
After you file, TWC sends the employer a copy of the claim, gives it 14 days to respond, and then issues a Preliminary Wage Determination Order that either side can appeal. If no one appeals, the order becomes final 21 days after it’s mailed. When wages are owed and still unpaid, TWC can pursue the employer through demand letters, liens, and bank levies, and it can require a bond against future violations for up to three years. One limitation is worth knowing up front: TWC’s own guidance points workers to the U.S. Department of Labor for minimum wage and overtime claims covered by the FLSA, so the state process tends to work best when an employer simply didn’t pay agreed wages.
Federal Claims Under the FLSA
The federal route gives you more time and, often, more money. You can file a complaint with the Department of Labor’s Wage and Hour Division, which takes confidential calls regardless of immigration status, or you can bring a private lawsuit. The standard deadline is two years from each missed payment, extended to three years if the violation was willful. That longer window matters for workers who’ve been shorted a few hours every week for months, since each paycheck starts its own clock.
In a private FLSA lawsuit, a worker who wins can recover the unpaid overtime plus an equal amount in liquidated damages, which effectively doubles the recovery. The employer also has to pay the worker’s reasonable attorney’s fees and court costs. That fee-shifting rule changes the math compared with the 33% to 40% contingency fees common in Texas injury cases, because a court-awarded fee is paid by the employer on top of what you recover. It’s one reason employment lawyers will often take smaller overtime cases that wouldn’t make sense under a traditional percentage fee.
For smaller amounts, Texas justice courts hear civil claims up to $20,000, and a breach-of-contract claim for promised wages can sometimes move faster there than an agency investigation. Be careful about mixing routes, though. The Texas Supreme Court has held that a worker who takes a TWC wage claim all the way to a final decision generally can’t sue later for the same wages, so it’s smart to talk with an employment attorney before you choose a path.
Retaliation and Final Paychecks
Federal law makes it illegal to fire or punish an employee for complaining about pay, whether that complaint goes to the Department of Labor, a court, or in many cases your own supervisor. Retaliation claims carry their own remedies, including lost wages and, in some cases, reinstatement. If you’re let go after raising a pay issue, document the timeline carefully, including who you complained to and when. It’s also worth checking whether you qualify for unemployment benefits after being fired, since eligibility in Texas generally depends on whether you were fired for work-connected misconduct.
Final pay has firm deadlines under Texas law, too. If you’re laid off or fired, your employer has to pay everything owed within six calendar days. If you quit, final wages are due on the next regularly scheduled payday. Employers also can’t hold back a final check to recover tools or equipment without your written authorization, a court order, or another legal basis, which makes an unpaid final check one of the most straightforward Payday Law claims there is.
What Contractors Should Take From This
For employers, most of the disputes described above trace back to recordkeeping. A small contractor running three crews across two counties can’t reliably total weekly hours from paper cards, and the errors compound when the same worker splits a week between projects. Contractors that run construction payroll with built-in time tracking can have employees clock in at each site through a mobile app or a PIN-protected kiosk, with those hours syncing straight to payroll so overtime is calculated on the full workweek. The same data shows labor costs by project and by employee, which helps with bidding and produces the kind of complete, accurate record the FLSA requires.
Good records protect honest employers as much as workers. When a TWC investigator or a plaintiff’s attorney asks for time cards, a contractor with clean, site-level data can settle the question quickly. One without it may face a worker’s reasonable estimate under the Mt. Clemens standard, two or three years of exposure, and a doubled award plus fees. The cost of fixing timekeeping is small next to that risk.
Don’t Let the Deadline Pass
If you think you’re owed overtime, the most important step is to start now. Gather your pay stubs, write down your hours while you still remember them, and figure out roughly when the shorted wages were first due. If the oldest wages are getting close to the 180-day mark, a TWC claim may need to go in quickly, while a federal claim can reach further back. A consultation with an employment lawyer can help you pick the route that recovers the most of what you’ve already earned.
