Under the Fair Labor Standards Act, workers in New York and throughout the nation have certain rights, including the right to a guaranteed minimum wage and overtime pay. Employers, however, commonly violate the rights of their workers. If your employer has failed to pay you the minimum wage or overtime pay, misclassified your employment status, or retaliated against you for complaining about wages, you should consult an experienced wage and hour attorney.

At Lipsky Lowe LLP, our employment law attorneys are dedicated to fighting for the rights of workers in New York and New Jersey. Well-versed in the applicable federal and state wage and hour laws, we have a proven history of holding employers accountable. When you work with us, we will take the time to explain all your rights and make sure you receive the compensation you have earned.

How does the Fair Labor Standards Act (FLSA) protect workers?

The FLSA is a federal law that sets standards for minimum wage, overtime pay, and record- keeping. The FLSA applies to employers whose gross revenue equals or exceeds $500,000 or who are engaged in interstate commerce. The courts have broadly interpreted the term “interstate commerce,” however, so the law essentially covers all employers. It is also worth noting that local and state laws provide workers with additional protections.

Exempt and Non-Exempt Employees and Overtime Pay

Under the FLSA, non-exempt employees are entitled to overtime pay of one-and-one-half (1.5) times their regular hourly rate for all hours worked over 40 in a week. Exempt employees are not eligible for overtime pay, regardless of how many hours they work.

Generally, non-exempt employees are those who earn less than $23,660 a year, or $455 per week. Exempt employees, on the other hand, are those who are paid a salary (not an hourly wage) and earn at least $455 per week. The key factor in determining whether employees are exempt or non-exempt is the type of work they perform.

If the employee’s duties fall under one of the exempted categories, he or she is exempt from the FLSA overtime requirements. Examples of exempt categories include:

  • Executive — Those who manage the enterprise or a department or subdivision, supervise at least 2 full-time employees and have the power to hire and fire employees or influence such employment decisions
  • Administrative — Employees who perform duties directly related to the management or general business operations of the employer or its customers and who exercise discretion and independent judgment on significant matters
  • Learned Professional — Those whose primary duties include performing work requiring advanced knowledge in a field of science or learning acquired by specialized, intellectual instruction

Failure to Pay Overtime

Some employees avoid paying their employees overtime wages by misclassifying employees as exempt employees or independent contractors. Other tactics employers may use to avoid paying overtime include:

  • Off-the-clock work — Insisting that employees finish uncompleted work after clocking out
  • Shortchanging hours — Deducting break times lasting 5 to 30 minutes from the number of hours worked when employees are required (by law or the employer) to take regular breaks
  • Overtime approval — Denying an employee overtime wages for not requesting to work overtime

Nonetheless, all work performed by non-exempt employees, whether on or off the clock, must be compensated and all hours worked must count toward the 40-hour overtime limit.

What is the minimum age under the FLSA?

The Fair Labor Standards Act sets the minimum wage for most employees in the nation at $7.25 per hour, although most cities and states have higher minimum wage amounts. In New York City, the minimum wage is currently $15 per hour, while workers in Long Island and Westchester must be paid a minimum wage of $13 per hour. The rate is $11.80 for workers in the rest of the state. The minimum wage for all workers in New York State is scheduled to be raised to $15 per hour by 2020. Department of Labor rules require employers to pay the higher rate, otherwise, they are in violation of the FLSA.


Under the FLSA, as well as local and state law, it is illegal for an employer to retaliate against an employee for complaining about wages directly to the employer, for filing a wage and hour claim with the government, or for initiating a lawsuit. This means that an employer cannot fire, demote, reassign or take any other adverse employment action against an employee who complains about overtime pay, off-the-clock work, or any other violation of the FLSA.

Contact Our NYC Employment Law Attorney

If your employer has failed to pay you the minimum wage, overtime pay, or retaliated against you for complaining about wages, you may have a valid wage and hour claim. Knowing that pursuing a claim against an employer can be difficult, the employment law attorneys at Lipsky Lowe LLP will be the strength in your corner.

We have extensive experience representing clients in administrative proceedings as well as in state and federal court. Although we prefer to reach negotiated settlements, we are fully prepared to litigate wage and hour claims, often on a class action or collective basis. Whether inside or outside of the courtroom, you can trust us to fight for the compensation you have earned. Please contact our office today for an evaluation of your case.