New York City is one of the entertainment capitals of the world. Unfortunately, unpaid overtime in the entertainment industry is far too common. Actors, dancers, and performers on Broadway and off-Broadway productions can be expected to work overtime without receiving any pay for their overtime hours.
When employers on Broadway refuse to pay dancers, singers, and performers over time, they violate federal, state, and New York City employment laws. If you work in the entertainment industry in New York and you believe you haven’t been paid overtime wages, you may be entitled to compensation. Contact the experienced employment attorneys at Lipsky Lowe LLP today to schedule your free initial consultation and learn more about your rights.
The Fair Labor Standards Act of 1938 (FLSA)
New York City workers are protected by state, federal, and local laws that mandate employees be fairly compensated. The Fair Labor Standards Act requires employers covered by federal law to pay a minimum wage of $7.25 per hour. The minimum wage in New York City is now $15 per hour. Covered employers must pay non-exempt employees time and a half of their regular hourly rate for all hours worked.
When employers fail to pay an employee enough overtime, the employee has two years to file a lawsuit against the employer in federal court. If the employer willfully refuses to pay the employee overtime, the employee has three years. The employee can also pursue compensation for double the amount the employer owes him or her.
Unpaid Overtime Laws in New York City For The Entertainment Industry
New York state has a similar requirement regarding unpaid overtime. Under the New York Labor Law, employees have six years to bring a lawsuit for unpaid overtime. Entertainment industry attorneys are entitled to one and a half times their hourly wage for work performed more than 40 hours in one work week. Unfortunately, wage theft, which involves paying people less than the law requires, is far too common for actors, singers, and more.
Are Entertainment Industry Professionals Such As Actors, Musicians, Dancers, and Performers Entitled to Overtime Pay in New York?
Under the FLSA, some occupations are exempt from New York’s overtime laws but are not excluded under the New York State Labor Law. Employees in these categories are entitled to one and a half times the minimum wage for overtime hours, regardless of their regular pay rate. Actors, singers, dancers, and performers do not fall into these categories. Most performers are considered “employees” under federal and state law. Section 651(5) of the New York Labor Law defines an “employee” as “any individual employed or permitted to work by an employer in any occupation,” excluding the occupations listed above from that definition. Under this definition, the majority of performers in the entertainment industry are considered employees and are entitled to overtime pay.
What If We Work Long Hours One Week and a Few Hours the Next Week?
It’s common for theater companies to require employees to work 60 to 100-hour weeks to set up for a show. The next week, they may work 10 hours. The marketing staff may put in much longer hours on opening night and take time off the next week.
Suppose an employee works 60 hours on a theater production. The employee can’t offset that overtime by only working 20 hours the next week. In this scenario, the employee is entitled to regular pay for the first 40 hours and overtime pay for the next 20 hours during the first work week. The employee is entitled to regular pay for the twenty hours they worked the following week.
If your employer isn’t paying you enough overtime during one week or offers you comp time that you are never allowed to take, we recommend reaching out to an attorney as soon as possible.
Is Overtime Pay Required for Work Done on the Weekend, at Night, or on Holidays In The Entertainment Industry?
Performers are frequently required to work at night, on the weekends, and on holidays for shows. Employees aren’t entitled to overtime pay for work during these periods. However, if an employee has already worked 40 hours since Monday and an employer demands that he perform at a Sunday show, the employee would be entitled to overtime pay for the hours worked on Sunday. However, suppose an entertainer is part of a collective bargaining agreement that requires increased or additional pay for the night, weekend, or holiday work. In that case, the agreement is enforceable under the labor law.
What If My Boss Asked Me to Waive My Right to Overtime Pay?
If you are auditioning for a theater or musical production, your boss may tell you that you’re required to waive your right to overtime pay. Your boss may claim that it’s standard practice to waive your right to overtime pay. Under state law, you cannot waive your right to overtime pay. Any attempt by an employer to have an employee waive his or her right to overtime pay for time worked over 40 hours in a workweek is illegal. Employers cannot force employees to waive a right they cannot waive.
Am I Entitled to Overtime If I Receive a Salary for Working on a Production?
You may assume you aren’t entitled to overtime pay if your employer pays you a salary. You are still entitled to overtime pay for hours worked over 40 in one workweek as long as your salary is lower than the requirement. If you aren’t sure whether you’re entitled to overtime, we recommend reaching out to an experienced employment attorney.
Discuss Your Unpaid Overtime Case with an Experienced Attorney
Employees in the entertainment industry often struggle to earn enough to pay their bills. When employers refuse to pay them for overtime work, employees have a right to pursue compensation. The skilled employment attorneys at Lipsky Lowe LLP have extensive experience representing Broadway actors, performers, signers, and dangers in New York City. We know how to hold entertainment industry employers accountable. Contact us today to schedule a free, confidential appointment with a skilled employment attorney.