He is also denied overtime pay, sick pay and vacation days. His employers says this is because he is not classified as a manager on salary..
Employment / Labor Attorney
In Texas employers are not required to provide sick pay or vacation days but if the employer offers them then the employer may choose which employees are granted those benefits so long as the basis for the decision is not an unlawful form of discrimination. Similarly, employers are not required to provide insurance benefits but if they do then the employer has far less flexibility in determining who has access to the insurance plan. When the ACA's employer mandate goes into effect then your son's employer may be required to provide access to an insurance plan but the mandate has been delayed.
Your son is not being denied overtime pay. He is not entitled to it. The Fair Labor Standards Act and Texas Payday Law, which govern employee wages, exclude movie theater employees from mandatory overtime pay for hours worked over forty. He still must be paid at least minimum wage for each hour worked but the employer is not required to pay overtime. The employer could choose to pay a premium for hours worked over forty but it is not required to do so.
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Your question is fairly narrow to facts involving one employer which needs to be addressed with an Attorney and can not be generally answered. However, if he is not on a straight salary he is always due overtime pay for excess hours by law. Insurance benefits are not a guarantee in Texas (unlike most States) though he can not be selectively denied out of a company policy. The Affordable Care Act President Obama put in may give him some additional rights, but it would have to be reviewed specific to that employer.
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General Practice Lawyer
I agree with Mr. Kazaleh's response. I would only add that you might want to see if they have a policy on vacation and sick leave and how it is earned. It may be that they do but have not told you specifically about it.
You might find such policies online on the theatre's website. Good luck!
My response herein is an attempt to give you general information and direction and is not intended to constitute an attorney-client relationship as perceived by state law.
Employee Benefits Lawyer
You have at least three questions here.
1) Overtime: it is difficult to understand whether you're saying that your son is working more than 40 hours per week and not being paid overtime, or that your son's employer refuses to give him extra hours to earn overtime pay. Additionally, it is entirely legal for an employer to alter employee shifts and work hours, even if that requires the employee to work long hours or awkward shifts, so long as the employer complies with state and federal law with regard to paying overtime where applicable. If the shift results in the employee working more than 40 hours for the work week, and he otherwise qualifies for overtime pay, the employer would be required to pay the applicable overtime rate. However, no employer is required to schedule employees for overtime hours. Therefore, the threshold question should be whether the employee is exempt, or entitled to overtime compensation. I have posted links, below, to web pages from the Texas Workforce Commissions and the US Department of Labor. These pages provide the standards used to determine if an employee is exempt from overtime. Maybe the information in these links will help you evaluate the employee's eligibility for overtime compensation.
2) Sick pay and vacation: Neither Texas nor Federal law require employers to provide paid holidays, paid vacation, or other forms of paid time off (“PTO”). Some employees are entitled to paid time off under employment contracts or collective bargaining agreements. Otherwise, paid holidays and vacations are entirely discretionary with the employer. Absent a collective bargaining agreement or written, published policy, various employees within the same company can be treated differently.
3) Insurance Benefits: As of this time, the portion of the PPACA ("Obamacare") which requires employers to pay all or part of the premium for employee health coverage has only partially become effective. Employers with an average of at least 50 full-time employees who don’t offer coverage or whose employee contributions exceed a certain percentage of the employee’s income could be subject to a penalty, if any full time employee receives a premium tax credit toward purchasing his or her own coverage through an exchange. PPACA requirements and enforcement time-lines are very complex issues. To get a better understanding of them, you can start by talking to your HR director, or visit the Department of Labor web page on this subject (I have provided a link below). If you still have questions, consult an experienced ERISA attorney in your area.
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