All workers in New York are entitled to a fair day’s pay for a fair day’s work. Unfortunately, violations of local, state, and federal wage and hour laws are not uncommon. When employers do not pay the minimum wage, fail to pay non-exempt employees overtime, force employees to work off the clock, or engage in other forms of wage theft, it takes a skilled employment law attorney to hold employers accountable.
Lipsky Lowe LLP has a proven history of achieving successful outcomes in wage and hour claims throughout the greater New York area. Well-versed in the applicable wage and hour laws, we routinely handle claims arising from:
- Minimum wage violations
- Employee misclassifications/overtime pay violations
- Unlawful wage deductions
- Unpaid commissions/bonuses
If your employer has denied you wages to which you are legally entitled, it is important to know your rights. When you work with our NYC employment attorney, we will be the strength in your corner, fighting for your right to any compensation you have not been paid.
What is the Fair Labor Standards Act (FLSA)?
The FLSA is a federal law that establishes minimum wage and overtime pay standards. The current federal minimum wage is $7.25 per hour, however, the current minimum wage throughout New York State is higher. All New York employers must abide by the New York State Labor Department’s minimum wage orders and follow FLSA rules on overtime pay.
What is the minimum wage in New York?
The minimum wage throughout New York State is higher than the minimum wage under the FLSA. Nonetheless, the minimum wage is determined by the employer’s location. The Labor Department’s minimum wage thresholds are as follows:
- Location Minimum Wage
- New York City $15/hour
- Long Island and Westchester $12/hour
- Remainder of New York $11.10/hour
The minimum wage for Nassau, Suffolk, and Westchester counties is slated to be raised to $15/hour by 2021. The minimum wage in the remainder of the state will continue to be reset on an annual basis based on certain economic indicators until it reaches $15/hour.
It is important to note that workers in the hospitality industry (bars, restaurants, hotels) fall under different minimum wage guidelines (see the section on common wage violations in the restaurant industry below). Our wage and hour attorneys represent employees across multiple industries who have not been paid the minimum wage.
Employee Misclassification and the Denial of Overtime
Employers in New York must abide by FLSA and state labor laws regarding overtime pay. All non-exempt employees must be paid an overtime rate of time-and-a-half the regular rate of pay for all hours worked over 40 hours per week. Generally, an exempt employee is one who:
- Is paid a base salary rather than an hourly wage
- Works for an exempt employer (e.g. restaurant, hotel)
- Performs an exempt job function (e.g. administrative, managerial, professional)
Salary Threshold for Overtime Exemption
The minimum salary that employers must pay to workers classified as exempt under New York State Labor Law’s administrative and executive exemptions is higher than the FSLA minimum threshold ($455 per week) and is based on the employer’s location and number of employees. The minimum salary thresholds are as follows:
Location & Salary Threshold
- NY City (11 or more employees) — $1,125.00 per week ($58,500.00 annually)
- NY City (10 or fewer employees) — $1,012.50 per week ($52,650.00 annually)
- Long Island and Westchester — $900.00 per week ($46,800.00 annually)
- Remainder of New York — $832.00 per week ($43,264.00 annually)
One way employers attempt to get around the FLSA overtime rule is by misclassifying non-exempt employees as exempt or misclassifying employees as independent contractors. If either of these situations has happened to you, you may have grounds for a wage and hour claim. Our employment law attorneys will work to help you recover damages, which include back overtime pay, liquidated damages, and attorneys’ fees.
Unlawful wage deductions
There are established standards for permissible payroll deductions in New York. A deduction must be expressly authorized by the employee in writing, or under the terms of a collective bargaining agreement, and the employee’s authorization must be voluntary.
Permissible payroll deductions include:
- Federal and state taxes
- Health insurance premiums
- Pension and 401(k) plans
- Dues to a labor organization
- Charitable contributions
- Educational tuition and fees
- Fitness center, health club, gym membership fees
- Daycare expenses
- Employers are not permitted to deduct a wide range of items and expenses, such as:
- Business fines/penalties for misconduct
- Lost company property (e.g. an employee’s laptop)
- Used paid time above the allotted amount
- Travel expenses or lodging
- Business losses (e.g an employee’s conduct that loses a customer’s business)
- Cash shortages at a register
- Items broken by an employer (e.g. merchandise that is dropped)
In short, deductions from your paycheck that you did not authorize, in writing, in advance, may be unlawful, excluding state and federal income tax withholdings.
In New York, employees are entitled to be paid all wages they have earned, including bonuses, commissions, fringe benefits, and overtime pay. Such compensation must be paid in a timely fashion, even if or when the employment relationship ends. If you have had your commissions or other compensation improperly withheld after quitting or being fired from a job, you may be able to recover damages through a wage and hour claim.
Common Wage Violations in the Restaurant Industry
Under the FLSA, employers in the hospitality sector (restaurants, bars, hotels) are permitted to pay tipped employees (servers, maids, bartenders, sommeliers, servers, runners, hosts, and others) less than the minimum wage as long as any tips received make up the difference. The amount hospitality employers are not required to pay is referred to as a tip credit.
In New York City, the current tip credit for restaurant workers for large employers (11 or more employees), is $5 per hour, which means tipped employees must be paid a wage of $10 per hour. For small employers (10 or fewer employees), the tip credit is $4.50 per hour and the mandatory wage is set at $9 per hour. In Nassau, Suffolk and Westchester Counties, the tip credit in the restaurant industry is $4 per hour with an $8 per hour cash wage, while the tip credit in the remainder of the state is $3.60 per hour with a $7.50 hour.
It is important to note that the minimum wage for tipped workers in the building services and all other service-related industries differs from the restaurant industry. Moreover, hospitality employers may not take tip credits for (1) days when tipped workers spend more than two hours, or 20 percent of a shift, doing non-tipped work, and (2) weeks when a service employee’s weekly tip rate falls below a certain hourly threshold.
In short, wage theft in the restaurant industry and hospitality sector occurs when an employer takes inappropriate tip credits, fails to redistribute tips, or fails to notify employees of its tip-pooling policy. Lawmakers in New York are presently considering proposals to eliminate the tipped way wage in the restaurant industry which require all employees to be paid the minimum wage. Whether the “one wage” initiative will be successful remains to be seen. In the meantime, the wage and hour attorneys at Lipsky Lowe know how to fight back against wage theft in the restaurant industry.
Have You Been Fired for Complaining About Wages?
Although employers have a lot of leeway in determining how much employees are paid, employers must follow applicable wage and hour laws. Moreover, the FLSA, city, and state laws prohibit employers from terminating or otherwise discriminating against employees who complain about wage and hour violations. If you have been fired for making a complaint or exercising any other legal right, you may be able to recover lost compensation and additional damages by filing a wrongful termination lawsuit.
Contact Our NYC Wage and Hour Attorney
If you work off the books, are forced to clock out early and continue working, have had your tips stolen, are denied meal or rest breaks, or experienced any other form of wage theft, consult the employment law team at Lipsky Lowe, LLP. We have successfully handled a wide variety of wage and hour claims involving:
- Breakage charges
- Expense reimbursements
- Donning and doffing
- Meal and rest breaks
- Off-the-clock work
- Spread of hours
- Tip pooling and sharing
- Time shaving
- Tip theft
- Uniform claims
- Unpaid internships
- Unpaid trainings
- Unpaid vacation
Once we determine that your claim is viable, we will explore all of your options for obtaining compensation, including a class or collective action. In a class action lawsuit, the wage and hour claims of numerous individuals are combined into one claim to increase its value and encourage the defendant to settle the matter equitably.
In a successful wage and hour claim, you may be awarded the wages you should have been paid, as well as liquidated damages in an amount equal to your unpaid wages. As an example, if your employer failed to pay you $1,000 in overtime, you may be awarded back overtime pay of $1,000 as well as $1,000 in liquidated damages. In addition, you may also be awarded attorneys’ fees and court costs, which means that you will not pay any fees to us until we win your case. Regardless of the value of your claim, the wage and hour attorneys at Lipsky Lowe will be the strength in your corner. Contact our office today for a free evaluation of your case.
Doug Lipsky is an excellent person to represent you in employment matters. He has incredible understanding of labor laws and when he accepts your case, you get 110% from him. Doug also understands a dispute from an employers standpoint, as he previously worked on that side of the table. Doug’s strongest attribute is his honesty. He clearly and precisely explains the entire process and councils his clients on the probability and strength of their claims. I would strongly recommend Lipsky Lowe to anyone who feels that they have been mistreated, fired or threatened at their place of employment.
NYC Wage & Hour Lawyer