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In New York, as in the rest of the United States, eligible employees who work more than 40 hours in a week are entitled to overtime pay, which must be at least one and one-half times their regular rate of pay. This requirement is a federal law under the Fair Labor Standards Act (FLSA), but New York has additional overtime pay requirements, which are set forth under the New York State Minimum Wage Orders. When there is a conflict between state and federal law, an employer must follow the law most beneficial to its employees. If you are not being paid out your entitled over time, it is advisable to speak with a New York City overtime lawyer today.
While overtime pay is a welcome incentive for many NYC workers, overtime hours may have some limits. The state’s labor laws require that workers employed in certain occupations, including restaurant and factory workers, receive a minimum of 24 consecutive hours rest time in a seven-day period.
What Does The New York Law Say About Overtime Pay?
If you operate a business in NYC or work for a NYC employer, it is essential to have a thorough understanding of New York Overtime Law. There are several determinants for whether or not employers have to pay overtime and to whom. How the employee is paid is one of these factors. While many salaried employees are exempted from overtime pay, this exemption does not apply to all employees on a fixed salary. In fact, most employees are eligible for overtime pay in certain situations.
While working more than 40 hours in a week automatically entitles eligible employees to overtime pay, working nights, weekends, or holidays does not. Receiving extra pay for working these hours is generally based on company policy, not law.
Furthermore, while certain jobs are exempt from overtime pay requirements under the FLSA, New York state law may still obligate these employers and contractors to compensate workers for overtime. If you are unsure about how overtime laws apply to you, it is in your best interest to consult with a New York City overtime lawyer today.
How to Calculate Overtime Pay in New York
In NYC, the current minimum wage is $15.00 per hour. Since the state’s overtime rate is 1.5 times the employee’s regular rate of pay, the lowest overtime pay for an NYC employee would be $22.50 (minimum wage multiplied by 1.5). If, on the other hand, the employee’s regular rate of pay is $40 per hour, the overtime pay would be $60 (40 x 1.5).
The minimum wage rate is lower in other parts of New York state— $13.00 for Long Island and Westchester County, and $11.80 throughout the rest of the state. And for tipped employees, such as restaurant servers, the minimum wage is only $10.00 because it factors in a $5 “tip credit.” As such, the overtime pay rate for tipped employees is $17.50 (the standard $22.50 paid for the state’s highest minimum wage, minus the $5.00 tip credit). It should be noted that tipped employees receive this amount regardless of where in the state they live and work.
Sometimes determining the regular rate of pay is less straightforward (such as for salaried employees or when the employee earns different rates for different positions with the same employer). When these situations arise, the rate of pay is calculated based on the work week in question, and there are formulas specific to a variety of situations.
For example, if different rates were paid to an employee during the same week, those rates will be weighted and averaged to determine the base for overtime pay. This process can quickly become confusing, and an NYC overtime attorney can help to ensure that you understand how the state and federal laws apply to you.
Furthermore, it’s important to point out that an employee who works 30 hours in one week and 50 hours the next is still eligible for overtime pay; the employer cannot average the two weeks to get 40 hours. There is an exception to this rule for some hospital and residential workers. If these employees work on a 14-day schedule, they may receive overtime pay for working over 80 hours in a two-week period.
And overtime is based on hours per week, not hours per day. This means that an employee who works 15 hours in a day is not entitled to overtime pay for time worked beyond the standard eight hours. If at the end of the week the employee has worked more than 40 hours, however, overtime pay would be required. There is an exception to this rule for some hospital and residential workers who may be paid overtime for more than eight hours worked in a day, under some conditions. If you have questions, contact a New York City overtime lawyer today.
Who Is Exempt From Overtime Pay in NYC?
Although most businesses are required by the FLSA and New York law to pay overtime, there are some exceptions. There are also certain employees who may not be eligible for overtime pay based on the nature of how they are paid.
Some examples of businesses and workers exempt from overtime in NYC include:
- Small businesses with less than 20 employees, if annual profits are $500,000 or less;
- Agricultural industries;
- International shipping industries;
- Some (but not all) startups;
- Farm workers;
- Commissioned sales professionals;
- Taxi drivers;
- Mechanics;
- Delivery drivers;
- Seasonal workers; and
- Employees who earn above a specified minimum amount, and who have certain professional duties, such as the ability to make employment or disciplinary decisions.
The above list is far from exhaustive. There are many situations that can lead to an exemption and many situations that could lead a normally-exempt employee to be non-exempt. If you have questions about overtime exemptions, an experienced NYC overtime lawyer can help.
It should also be noted that residential (live-in) workers, such as nannies and housekeepers, are not exempt from overtime pay. Although these workers are not automatically entitled to overtime pay for more than 40 hours worked in a week, they are entitled to overtime pay for more than 44 hours worked in a week.
Not Paying Overtime Is a Form Of Wage Theft
Failure to pay workers for overtime to which they are legally entitled is a form of wage theft. Other examples of wage theft include not paying workers at least minimum wage, not providing the last paycheck when a worker leaves their job, and not paying for total hours worked. Misclassifying workers as independent contractors and other tax law violations also contribute to wage theft.
Legal immigration status and US citizenship are not prerequisites for overtime pay. If you believe that an employer is taking advantage of a worker based on their illegal status, contact an experienced New York City overtime lawyer immediately.
Which Workers Most Commonly Suffer From Wage Theft?
No type of worker is immune to the risk of wage theft, but non-union workers, immigrants, and low-wage workers are most vulnerable.
Industries that involve significant wage theft include:
- Agriculture
- Restaurants
- Long-Term care and home health care
- Garment manufacturing
- Janitorial
- Poultry processing
- Retail
Which Laws Provide Overtime Rights and Wage Theft Protection?
Wage theft is a violation of the federal FLSA, which requires employers to pay 1.5 times the employee’s normal rate of pay for any hours worked above 40.
The New York State Wage Theft Prevention Act further requires an employer to present a complete statement of earnings at the conclusion of each pay period. Failure to do so is a violation of the law.
The Davis-Bacon Act specifically entitles federal contract workers to prevailing wages, which are above minimum wage and are calculated by the US Department of Labor.
If you have questions, or are unsure, about your unique situation – contact a New York City overtime lawyer at Joseph & Norinsberg, LLC today.
How Can a New York City Overtime Attorney Help?
Unfortunately, paying employees less than required by law is shockingly common in NYC. Wage theft is unfair, but it’s also illegal. As such, you may be able to obtain compensation for any damages suffered as a result of wage theft. Common damages include back pay, legal fees, and other damages directly linked to the withheld pay.
An experienced NYC overtime lawyer will thoroughly review your case to determine if wage theft occurred, find and gather evidence to substantiate your claim, calculate back pay and other damages, negotiate for a pre-trial settlement, and file a lawsuit if no reasonable settlement can be reached. In some cases, your overtime attorney may establish a class-action lawsuit if it appears that a large number of employees were subjected to wage theft.
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Contact Joseph & Norinsberg LLC Today For Help with Your Overtime Violation Claim
If you have been a victim of wage theft in NYC, the skilled legal team at Joseph & Norinsberg LLC can help. We have successfully protected the rights of countless NYC workers, getting them the justice and compensation, they deserve. You should be compensated fairly for the work you do. Wage theft is shockingly rampant in NYC and throughout the state, and we believe that employers should be held accountable for their actions.
Don’t go through this process without the help of a skilled NYC overtime lawyer by your side. We can help. Contact Joseph & Norinsberg LLC today and book a free and confidential consultation about your case.
Having over 25 years of experience and a proven track record of success, Jon has become one of the top civil rights litigators in New York City. A true trial lawyer, he is not intimidated by the intense challenges complex civil rights and constitutional law cases present.
A lawsuit proved employer misappropriation of tips. Court awarded employees unpaid tips, damages, fees after bench trial.
Wage and hour settlement on behalf of residential superintendents.
After getting the defendant to agree to mediation, settled for a class of construction workers who were not paid their overtime properly.
