Work Schedules

  1. Work schedules are up to an employer to set and enforce, i.e., scheduling of employees is entirely within the employer's control, and it is up to the employees to comply with the schedule that is given to them.

  2. With only extremely narrow exceptions relating to certain regulated industries or collective bargaining agreements, adults, as well as youths ages 16 or 17, may work, and/or may be required to work, unlimited hours each day (the only limits are employee morale, practical realities, and common sense in general).

  3. One exception to the unlimited hours rule in Texas is for employees in the retail sector. A retail employer must allow full-time employees (defined in the following statute as those who work more than 30 hours in a week) at least one 24-hour period off in seven, i.e., each week, the employee must be allowed to have a day off. See the following link for the statute in question: Section 52.001 of the Texas Labor Code. For an even narrower exception for employees who have been continuously employed with the same retail business since August 31, 1985, see Section 52.002.

  4. Another exception pertains to employers with 15 or more employees: due to religious discrimination laws, in the case of employees who do not want to work at a particular time for reasons related to observance of their religion, failure to allow reasonable time off for religious observances may potentially be considered an act of religious discrimination, unless the company can show that it would be an undue hardship to accommodate an employee's need for time off for the religious observance.

  5. Employers can require employees to work overtime, as long as the non-exempt employees are properly paid for the overtime hours they put in (keep in mind that neither Texas nor federal law require payment of "daily overtime" - overtime pay at time and a half is owed only for hours in excess of 40 in a seven-day workweek); for details on overtime hours and pay, see "Determining Hours Worked for Non-Exempt Employees" and "Calculating Overtime Pay" in this book.

    1. The only exception is for nurses (RNs and LVNs) - under Texas Health and Safety Code Section 258.003, mandatory overtime for RNs and LVNs is permissible only in disaster and other emergency situations. For purposes of this law, "mandatory overtime" is defined as work time above and beyond the normal pre-scheduled shifts (Section 258.002). Thus, while such a nurse can be required to work a schedule of 50 or more hours per week (with payment of overtime pay for any nurse who is non-exempt), they cannot be required to work beyond what they were told they would have to work, unless an emergency situation demands additional hours beyond the pre-scheduled shifts.

  6. Under the employment at will doctrine, an employer can change an employee's hours with or without notice. However, excessive application of flexible / just-in-time scheduling can lead to turnover – see below.

  7. No Texas or federal law requires advance notice of overtime or schedule changes, but as with most employee relations matters, it is a good idea to give as much advance notice as possible when informing employees of extra work or changes in their hours; sudden and adverse changes in hours, or burdensome overtime requirements announced with little or no notice, can under some circumstances amount to good cause connected with the work for an employee to resign, resulting in potential unemployment insurance eligibility for the employee who resigned. Any such employee would have the burden of proving that a reasonable employee would have resigned under the circumstances, and in addition would have to show that they gave reasonable notice to the employer that they were so dissatisfied over the schedule change that they were considering resigning from the company.

  8. When using scheduling software, try to avoid the downsides of flexible scheduling such as "clopenings" (i.e., the same employee works late, closes the store, and opens again a few hours later), insufficient notice of duty times (leading to unavoidable lateness), split shifts, burnout, distractions related to family concerns, and the like.

  9. Although some states require what is known as "show-up pay" (a minimum amount that is paid to employees who show up for work, only to be sent home early or with no work at all), no Texas or federal law requires such a payment; however, it is best to express the employer's policy on that issue clearly in a written policy, one way or the other.

For a sample policy regarding work schedules and compliance with company timekeeping procedures, click here.

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