New York and federal labor laws provide protections for those working in the state of New York. Two of the most well-known protections are the minimum wage and mandatory overtime laws. New York’s minimum wage already exceeds the federal minimum wage of $7.25 and was increased to $8.75 at the end of 2014. New York largely follows federal overtime laws, which provide that employers must pay time and a half for hours worked over 40 in a week. Failure to pay overtime can result in civil penalties against the employer.
Which Employees Do Not Qualify for Overtime Protections?
There are certain types of employees that are considered exempt from the overtime rules. These exempt employees are paid a salary rather than an hourly wage and often end up working far more than 40 hours per week without overtime compensation. To be exempt, employees must either fall into one of the categories of jobs that are automatically exempt, like outside sales professionals, or make a certain salary and perform what are referred to as exempt job duties.
There is a temptation on the part of employers to try to classify employees as exempt in order to avoid having to pay overtime wages. However, it is form, and not title, that matters. In other words, if an employer calls an employee “exempt” but the employee doesn’t meet the legal tests for an exempt employee, that employee is entitled to overtime and the employer’s failure to pay overtime is illegal.
When Employers Don’t Follow The Law
Most employers follow federal and New York wage and hour laws, including those governing overtime, but some don’t and their employees suffer. Fortunately, under the law employees can pursue and obtain their unpaid back wages, attorneys’ fees and costs, and in many cases, liquidated damages of the amount of unpaid wages. In other words, double the back pay due.
Of course, some employers mean well but are uninformed or ill-advised, and don’t pay overtime or don’t pay all overtime due to their employees. Where the failure to pay time and a half for hours was in good faith and based on the employer’s reasonable belief that it was in compliance with state and federal overtime laws, 29 USC § 260 gives the court the ability to award only back pay and no liquidated damages. On the flipside, if the employer’s failure to pay overtime was willful, the court will double the liquidated damages award.
Types of Employees Most At Risk
Due to the unique nature of their schedules, certain types of employees are more at risk of having their overtime illegally withheld. Those groups of employees include medical workers like nurses or LPNs, service professionals like cooks and servers, and laborers like nannies that provide work inside the home.
For employees that receive tips, issues like tip-sharing and the tip credit towards the minimum wage can make overtime issues confusing and increase the likelihood that a tipped employee was underpaid for their work over 40 hours per week. Tipped employees, like all other non-exempt employees, are entitled to mandatory overtime of time and a half for hours worked over 40. The calculation of time and a half should be based on the minimum wage, not the lower cash payment.
Your Overtime Wages
If you think you may be entitled to back-pay for your employer’s failure to pay overtime, contact the unpaid overtime attorneys at Joseph and Norinsberg by phone at 212-JUSTICE or e-mail at [email protected].
