Construction Workers

Construction companies love day rates, flat-fee gigs, and independent contractor labels. But the FLSA doesn't care about those labels. If you worked more than 40 hours in a week, you're owed overtime, and no contract language gets the employer out of that obligation.

Who I Represent

I work with concrete workers, framers, electricians, plumbers, roofers, painters, equipment operators, laborers, truck drivers for construction companies, and any tradesperson who gets a daily rate instead of hourly pay. Also workers misclassified as independent contractors or 1099s, and piece-rate workers (paid per unit installed) who work weeks topping 60, 70, or more hours without overtime.

This covers both residential and commercial construction, subcontractors, and union vs. non-union work.

Common Violations

Here's what I see in construction:

You're paid a flat daily rate ($150, $200, whatever). Your contract says "this covers all hours worked that day." You work 12 hours on Monday and 11 on Tuesday. The employer says you're already paid. No overtime premiums. But the law requires overtime on any hours over 40 per week, regardless of how you're paid.

You're classified as an independent contractor on a 1099, but you show up at 7am to the job site the contractor assigns, use the tools they provide, follow their supervisor's directions, and work alongside their employees. You're not independent. You're an employee, and you're owed overtime.

You're paid by the piece (per unit installed, per square foot, per item). The rate is set so that hitting the quota requires 60 hours a week. Once you exceed 40 hours, those extra hours have to be paid at overtime rates based on your average hourly rate. The employer can't hide behind piecework rates.

Your crew loads trucks at 6am, drives an hour to the site, works until 4pm, and loads out again. The employer only pays from job-site arrival to departure. But travel time to and from the job, setup, and breakdown are work time and have to be paid.

The employer pays you on a weekly or project basis, mixing 40-hour weeks with 55-hour weeks, then tries to average them. No. Overtime is calculated by the week. A 55-hour week means 15 hours of overtime that week, not averaged away.

How the Law Protects You

The FLSA requires overtime at time-and-a-half for all hours over 40 per week. This rule applies regardless of whether you're paid hourly, daily, by the piece, or flat-fee. Regardless of whether you're classified as an IC or an employee. Regardless of what your contract says.

If you're working as an IC, the first question is whether you're actually an independent contractor under the law. That depends on the facts of your relationship with the employer, not what a document calls you. If you're subject to the employer's direction and control, you're likely an employee entitled to FLSA protection. Courts apply the economic reality test, a standard rooted in Rutherford Food Corp. v. McComb, 331 U.S. 722 (1947), and in the Fifth Circuit, applied in cases like Parrish v. Premier Directional Drilling, L.P., 917 F.3d 369 (5th Cir. 2019).

For piece-rate work, the employer has to calculate your average hourly rate and pay overtime at time-and-a-half for hours over 40. You can't be asked to work unlimited hours for a set piece rate with no overtime adjustment.

For daily-rate or flat-fee arrangements, the employer still owes overtime premiums on excess hours. The daily rate becomes your base, and you're entitled to the overtime multiplier on top of that.

What Your Case Could Be Worth

Construction cases get large because hours are long and the back-pay periods are substantial.

Say you worked construction for two years making $200 per day. You averaged 50 hours per week. That's 10 overtime hours per week. At an average of $25 per hour (your daily rate divided by hours worked), those 10 hours a week should have been paid at $37.50 per hour (time-and-a-half). Over two years, that's 1,040 overtime hours at $12.50 extra per hour ($37.50 minus $25). That's $13,000 in unpaid overtime premium alone, before considering the base wage adjustments.

The FLSA allows you to recover double damages: the back wages plus liquidated damages equal to the back wages. So $13,000 becomes $26,000.

If you were misclassified as an IC and should have been an employee, you also recover for any hours the employer claimed you didn't work but actually did.

We can look back 2 to 3 years of work, sometimes more depending on the circumstances.

No Cost to You

I handle all cases on a contingency fee basis. No upfront fees. If there is no recovery, you pay nothing, not even the costs.

Contact Me

30+ years employment law experience. 15+ years FLSA-only.

If you're working long weeks on a day rate, flat fee, or piece-rate arrangement and not getting overtime pay, or if you've been misclassified as an IC, call me at (512) 799-2048 or email doug@welmakerlaw.com. Let's talk about your work arrangement and what you might be owed. The consultation is free.

Related Reading

• 1099 Workers and Overtime: The 1099 Form Doesn't Determine Your Status — Why the 1099 form your employer gave you doesn't determine whether you're owed overtime.
• Independent Contractor or Employee? How the FLSA Determines Your Status — How the economic reality test works, with examples from construction and related industries.
• How Much Is My FLSA Overtime Case Worth? — Back pay, liquidated damages, and how day-rate and piece-rate cases are calculated.
• Can Employers Average Hours Over Two Weeks to Avoid Paying Overtime? No. — Why the FLSA requires overtime calculated per workweek and why biweekly averaging is illegal.
• What Is a Collective Action and How Does It Work? — How FLSA section 216(b) collective actions work, who can opt in, and why they matter.