According to the Fair Labor Standards Act, non-exempt employees in Texas and around the country must be compensated for all overtime hours worked. This may include time spent sending emails, replying to text messages or taking calls on a cell phone. Furthermore, this may be the case even if the employer has a policy that forbids an employee from working overtime by using email or a cell phone to complete an assignment.
Generally, the fact that an employer knew that work was performed is enough to obligate it to pay overtime regardless of its stated policy. This was put to the test in a case involving the city of Chicago and the Chicago Police Department's Bureau of Organized Crime. Members of the bureau contended in a lawsuit that there was an unwritten overtime policy when it came to work done on a Blackberry issued by the city. The plaintiffs contend that the unwritten rules discouraged workers from asking for overtime pay.
However, the 7th Circuit found that since there was a written overtime policy, there was a method for workers to apply for overtime pay. The court also determined that any unwritten policy that may have been used did not have a sufficiently chilling effect on an employee's ability to file for overtime.
If an employer fails to provide overtime pay, it may be possible to take legal action against the employer. In some cases, this may mean pursuing a settlement with the help of an attorney. It may also mean going through a formal trial and asking a jury to rule on the matter. If successful, an individual may be entitled to the amount of overtime pay owed plus other applicable damages.