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Common Overtime Wage Violations in New York

By Douglas Lipsky

Under federal and state law, eligible workers are entitled to overtime pay, but overtime violations are commonplace. If you believe your employer has failed to properly pay you overtime, talk to an experienced employment lawyer. Let’s take a look at how employers in New York violate overtime pay rules.

Who should receive overtime pay?

Under the Fair Labor Standards Act (FLSA), employees are classified as either exempt or non-exempt, and the latter are entitled to overtime pay one-and-a-half times their usual hourly rate for all hours worked over 40 per workweek. 

To be classified as exempt, an employee must earn a salary and have job duties that meet certain requirements. Employees who meet these criteria include:

  • Managers
  • Executives
  • Administrative employees
  • Outside sales professionals
  • Computer professionals

If your job duties do not fit into one of these categories you are considered non-exempt and entitled to overtime pay under both the FLSA and New York Labor Law (NYLL).

Common Overtime Violations

Employers across multiple industries in New York and around the country violate overtime in a number of ways:

Misclassifying Employees

A company may give a person a job title such as manager to classify him or her as exempt when in fact they do not perform any managerial duties; for example, supervising a staff. Also, wage and hour laws, including overtime requirements, only apply to employees, and not to independent contractors; employers often misclassify employees as independent contractors to circumvent overtime regulations.    

Generally, the more control over an individual a company has, the more likely it is that individual is considered an employee. For example, if the company determines what the responsibilities of the job are, how those duties are to be performed, and also provides equipment (e.g. laptop), the individual is likely an employee. 

By contrast, independent contractors are given assignments by employers, but independent contractors are afforded discretion as to how to complete those assignments. Independent contractors also use their own equipment or tools to perform work for which they have been contracted.  

Miscalculating Hours

Employers also skirt overtime laws by improperly calculating the time an employee has worked to keep his or her hours below the 40-hour per workweek threshold. As an example, an employer may require restaurant workers to set tables before clocking in or after clocking out at the end of a shift. Other employers may also subtract daily 15-minute rest breaks from an employee’s total hours. In any event, employers cannot require employees to work off-the-clock and must compensate them for breaks according to company policy and applicable wage and hour laws. 

Pay “Comp” Time Instead of Overtime

Federal and state labor laws require New York employers to pay overtime for all hours worked in excess of 40 per workweek – employers cannot offer time off on a different day in lieu of paying employees proper overtime wages.

The Takeaway

Failing to pay overtime is a common form of wage theft in New York and around the country. If you believe your employer has failed to pay you overtime, it takes a knowledgeable wage and hour attorney to protect your rights and get you the compensation you have earned. While no two wage and hour claims are the same, you may be entitled to back pay as well as liquidated damages of up to two times the wages you are owed. In addition, you can also recover attorneys’ fees and court costs, which means you will not have any out-of-pocket legal expenses. Contact our team today.

About the Author
Douglas Lipsky is a co-founding partner of Lipsky Lowe LLP. He has extensive experience in all areas of employment law, including discrimination, sexual harassment, hostile work environment, retaliation, wrongful discharge, breach of contract, unpaid overtime, and unpaid tips. He also represents clients in complex wage and hour claims, including collective actions under the federal Fair Labor Standards Act and class actions under the laws of many different states. If you have questions about this article, contact Douglas today.