Boss expecting employee to work overtime

My Boss Isn’t Paying me for Overtime. What are my rights?

By Douglas Lipsky

Under federal and state law, employers in New York are required to pay their employees overtime premium pay when they work more than 40 hours in a week. An employer that fails to do so can be held liable through an individual claim or a class-action lawsuit. If you have been illegally denied overtime pay, it takes an aggressive wage and hour lawyer to protect your rights. 

When are you entitled to overtime pay?

Employers must adhere to the overtime requirements established by the federal Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). In short, eligible employees must be paid overtime for all hours worked over 40 hours in a single workweek. Whether you normally work Monday through Friday or Tuesday through Thursday or any other variation of a workweek, you are entitled to overtime pay.

Certain employees are exempt from overtime pay standards, including:

  • Salespeople 
  • White-collar employees (executive, administrative, professional employees)
  • Skilled computer workers
  • Outside salespeople
  • Independent contractors
  • Individuals working for a federal, state, or municipal government
  • Farm laborers
  • Interns, volunteers, and apprentices
  • Those who work for religious or charitable organizations

If you do not fall under one of these categories, you are considered a “non-exempt” employee who is entitled to receive overtime pay.

How is overtime pay calculated?

You must be paid at time-and-a-half of your hourly rate. For example, if you are ordinarily paid $20 an hour, then you should be paid $30 for each additional hour over 40 during the workweek. It is also important to note that if your employer allows you to take breaks, you must be paid if you work through breaks (e.g. eating lunch at your desk). So, if your work during breaks brings you into overtime hours, you must be paid time-and-a-half for those hours.

How do employers get around overtime rules?

Despite the overtime standards of the FLSA and requirements of state law, employers often violate these rules by:

  • Misclassifying nonexempt employees as exempt
  • Misclassifying employees as independent contractors
  • Improperly calculating overtime
  • Requiring employees to work “off-the-clock” 
  • Paying employees their regular rate for all hours worked

Damages You Can Recover for Unpaid Overtime

An employee who brings a wage and hour claim may be awarded any underpayment due, reasonable attorneys’ fees, and “liquidated damages” of up to 100 percent of the total amount of wages owed. For example, if you are owed $1,000 in overtime and liquidated damages are awarded, you will receive $2,000. Liquidated damages are designed to punish the employer for negligent or willful misconduct, such as a breach of employment contract. 

Under the FLSA, an employee has two years to file a lawsuit in federal court against an employer for unpaid overtime, unless the violation is willful, in which case the time limit is three years. However, the NYLL allows employees to seek damages for unpaid wages going back 6 years. 

Next Steps

If you have been denied overtime pay, talk to an employment lawyer about your legal options. While you can pursue an individual wage and hour claim, it is likely that this has been going on for some time and your coworkers might be in the same situation, which makes it possible to file a class-action lawsuit. 

Have You Been Denied Overtime in New York City, New York, or New Jersey? Call Lipsky Lowe for Help. We will be the strength in your corner.

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.