A person was hired for computer programming work. He was hired on salary. It was expected to be a full-time, 40 hours per week thing.

The company has traditionally, when asking people to work a little overtime, has allowed comp time later to make up for it.

Soon after being hired, the employee discovered the group he was hired into to be on a 'death-march'

Within a few week of the hire date, the company then required the employee to work late every night, often until 10 or 11pm. They still required the employee to be in at the normal time of 9am and no later.

They then required mandatory Saturday, Sunday AND holiday work with the same hours.

The employee averaged 70, 80 and often 90 hours of work per week. The company kept saying that the project should be finished soon and after that they could offer return to normal work ours and with comp time.

This went on and on with excuse after excuse being given to the employee as to why the project kept going on and on.

After 6 months of this much work, the project was finished.

The employer terminated the employee as soon as it was finished with no explanation.

Even if the position was classified as 'exempt' couldn't this be classified as so egregious as to be negligent or even abuse of the employee.

What would the chances be of being able to sue for some form of back make-up pay?

The company terminated 5 people on that day, all over the age of 40. They hired several others near the same time, all in their 20s. Could that be a reason for suing as well?

  • 1
    Could you elaborate what you mean that the employee "found out" the group was on a "death march"? Also, did the employee have an employment contract with the employer, which, while not legally necessary in Texas is also not all that uncommon as I understand it. That could help .
    – A.fm.
    Feb 5, 2019 at 1:13
  • 1
    Both claims that you suggest are viable. Neither are cheap or easy to litigate. A government agency might enforce the overtime claim on its own.
    – ohwilleke
    Feb 5, 2019 at 17:02
  • It's very understandable that the person was laid off. Who would want to employ someone who is totally exhausted from 70-90 hour weeks. Now seriously, you let yourself be exploited.
    – gnasher729
    May 22, 2019 at 19:13
  • The question is whether or not there's the likelihood of prevailing in a suit. Seems odd that you'd be claiming that everyone who wants to sue someone allowed it.
    – mark b
    May 23, 2019 at 20:11

2 Answers 2


Federal and Texas Law:

Texas' laws with respect to overtime pay adhere strictly to the federal Fair Labor Standards Act (FLSA). Employees who work more than 40 hours per week are entitled to either 1.5 hours of comp time per extra hour work or 1.5 hours worth of pay per extra hour worked. According to this source, though, the comp provisions are for government workers and the over time pay provisions are for non-government employees. In fact,

If you don’t work for a governmental agency and you get “comp time” for overtime hours, your employer may be violating the Texas’ overtime law. For example, if you work 45 hours during the workweek, and your employer tell you to take 5 hours off the next week to make up for the extra hours worked, this is a violation of overtime law. You must be paid for excess hours worked.

Non-Exempt Employees:

"Non-exempt" employees are those who are exempt from the provisions of FLSA. These are typically hourly wage workers. They must be paid minimum wage and overtime pay for any work over 40 in a week. A nonexempt employee whose extra hours are not properly accounted for and reflected in his paycheck, he may find it in his interest to file a wage violation complaint against the employer with the Department of Labor's Wage and Hour Division (WHD), which is explained in further detail here.

Exempt Employees:

Exempt employees don't receive FLSA protections and are not entitled to overtime pay. Employees fall under this category in a couple ways. The first way is by action of law and you can see a list of categories of employees exempt from the law here and here.

The following is possibly the most relevant part for the individual in question, but please note, there are other determinations to consider above and beyond the below-quoted text:

Section 13(a)(1) and Section 13(a)(17) of the FLSA provide an exemption from both minimum wage and overtime pay for computer systems analysts, computer programmers, software engineers, and other similarly skilled workers in the computer field who meet certain tests regarding their job duties and who are paid at least $455* per week on a salary basis or paid on an hourly basis, at a rate not less than $27.63 an hour.

Read the Wage and Hour Division's Fact Sheet on the Exemption for Employees in Computer-Related Occupations Under the Fair Labor Standards Act here for more information to see whether this individual falls under this exemption. If you're still unsure, call WHD at 1-866-4USWAGE. Please note (this info is at the bottom of the fact sheet page) that these provisions may be subject to change, as DOL has been working through the rulemaking process with the aim of adjusting these provisions, although I do not have information on what changes are contemplated.


This Texas employment litigation law firm says relatively clearly that, although at-will employees do not have much power with respect to their work schedules, "Texas law places no restrictions on the hours that an employee can work, but employers must pay employees overtime for hours worked in excess of forty hours per week."

Also, worth noting, from this Texas law firm, because the firing does sound rather arbitrary (although I declined to address the age discrimination issue at this point based on a lack of enough info) and because of the possibility the company is already out of compliance with the law:

Even when it appears that these strict requirements are met, technical legal reasons may prevent an employer from denying overtime pay to a salaried employee. This is because employers must dot every "i" and cross every "t" or risk owing thousands of dollars in overtime pay.

Do You Have A Work Contract?:

If yes, read it! If no, maybe don't be so sure. According to this 2016 article about a case out of Pennsylvania, even an email exchanged between an employer and employee, assuming it contains enough specific material, may be viewed by a court as an employment contract.

One More Thing:

Maybe. As most other things do, this may vary by state and may or may not be applied differently in the context of an employer-employee relationship (or may not apply at all if a separate work contract covers it), but someone in the employee's position in the question may be able to seek and obtain relief through the concept of unjust enrichment. This is often used as a backup when one is operating without an applicable contract. Generally speaking, if someone provides someone a benefit and the second person, upon receiving and enjoying the benefit, does not compensate the first person, one could say the second person was "unjustly enriched." If it can be determined that the Employer in the question was unjustly enriched by the work of the employee, the employee could perhaps be able to be paid restitution. More details on this concept at the above link.


In Texas, as in most of the US, the law is "Employment at Will". This means that an employer is free to fire people at any time, for any reason, or none, as long as it is not for one of the few reason forbidden by law, such as racial or age discrimination.

Hourly employees are entitled to overtime pay in such cases, but "exempt" employees are not. Nor are they entitled to comp-time as a matter of law, that is at the option of the employer. (The question seems to imply that the employee in question was "exempt" but does not actually say so.)

The only really effective recourse against that sort of "death march" is to quit and find a better job, or to threaten to do so while they still need you, unless the conditions return to acceptable ones.

I have heard of people in such a situation who "get sick" every day at 5:30pm, because local law forbid requiring ill employees to work. But that is pretty much inviting an arduous and possibly expensive administrative and/or legal battle, and will depend on the specifics of the state/local law. In any case, it is too late for the person in question to try that.

On the facts as stated, there might be a valid claim of age discrimination. But additional facts would be needed to establish this, and it would be in my view unwise to try it without consulting a good employment lawyer. Such a lawyer could advise exactly what must be proved and how, and what the probable chances of any recovery would be.

  • 1
    To determine whether a given worker is entitled to either the overtime pay or the comp time, I believe we'd have to know more about the position the person in OP's question held at the company and how much that individual earned.
    – A.fm.
    Feb 5, 2019 at 1:23
  • 1
    @A.fm. True. But since the question mentioned exempt employees (and seemed to imply that the employee in question was one) I mentioned the protections that such employees do not have. Feb 5, 2019 at 1:26

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