Working as a tow truck driver is a demanding job with long hours and stressful work, especially in a large urban area like New York City. Some New York tow truck companies have violated federal and state wages by denying tow truck drivers the overtime compensation to which they are entitled. If you are a tow truck driver in New York City and you have been denied overtime pay, it’s important that you understand your rights.
Have You Been Denied Overtime As a Truck Driver? We Can Help
The attorneys at Lipsky Lowe LLP provide our clients with a platform to take a stand against unjust wage and hour practices. Our attorneys advocate strongly for clients to recover the total amount of monetary compensation they deserve. If you’ve been wrongly denied overtime pay as a tow truck driver, contact Lipsky Lowe LLP today to schedule your free case evaluation.
The Second Circuit Court of Appeals Ruled in Favor of Overtime for Tow Truck Drivers
In many cases, New York tow truck drivers are entitled to overtime pay in New York. Recently, the United States Court of Appeals for the Second Circuit ruled in favor of tow truck drivers claiming they’d been wrongfully denied overtime pay in Hayward v. IBI Armored Servs., Inc.. – F.3d –, 2020 WL 1647176 (2d. Cir., April 3, 2020).
The court of appeals overturned a decision from the United States District Court for the Eastern District of New York. The lower court had held that the Fair Labor Standard Act made the truck drivers ineligible for overtime pay because of the Fair Labor Standards Act (FLSA) motor carrier exemption. The tow truck drivers claimed they were entitled to unpaid overtime under the federal FLSA and New York’s labor law.
The Second Circuit Court of Appeals emphasized that New York’s labor law mandates that all employees be paid at an overtime rate of one and a half times the minimum wage, even if the employee falls within the motor carrier exemption of the Fair Labor Standards Act. This decision is monumental for tow truck drivers. During the COVID-19 pandemic, tow truck drivers and other logistical employees frequently worked extremely long hours to ensure the supply chain remained intact.
Overtime Pay for Tow Truck Drivers Under the FLSA
The Fair Labor Standards Act states that an employee who drives a truck that weighs over 10,000 pounds is not entitled to overtime compensation. In the case mentioned above, the employers of the tow truck drivers refused to pay them overtime, claiming the employees were exempted from overtime because they are considered motor carriers. As a result, truck drivers may not be able to obtain overtime pay through the FLSA. However, drivers who are employed in New York are entitled to overtime pay according to New York’s labor law.
Other Common Ways New York City Employers Engage in Wage Violations
Refusing to pay tow truck employees overtime is one of many ways employers engage in wage theft. Some of the most common ways in which tow truck companies engage in wage theft include the following:
- Paying an employee a flat rate for days worked, not at an hourly rate
- Not paying an employee for required training
- Promising the employee incentives but not paying them
- Requiring the employee to perform unpaid tasks before or after work
- Unpaid hours spent on call
- Requiring the tow truck driver to work during breaks
- Not providing the breaks required under state and federal law
- Misclassifying tow truck drivers as management
Improperly Calculating the Hours an Employee Has Worked
In light of the recent Appellate Court ruling, tow truck companies are required to pay their tow truck drivers for unpaid overtime. Failure to do so is a violation of New York wage-and-hour laws. In addition to refusing to pay overtime outright, employers can also violate overtime by incorrectly calculating the employee’s hours worked. The employer may claim that the employee hasn’t worked 40 hours. Thus, the employer doesn’t have to pay overtime.
Employers may give tow truck drivers comp time instead of overtime. For example, instead of paying the employee at a rate of one and a half times their hourly rate for overtime hours, the employer may give them time off work that they can use during the next work week. This benefits the employer. Suppose the tow truck driver works an extra 10 hours and receives comp time instead of overtime. The next week, the employee works 40 hours. The employer would have normally required him or her to work 50 hours but makes the employee use the 10 hours of comp time. In doing so, the employer has avoided paying overtime the next week.
Finally, an employer may falsify the employee’s paycheck and claim that the employee only worked 40 hours when the employee worked 45 hours. The employer may round down the amount of overtime the employee worked to avoid paying additional overtime.
Pursuing a Claim for Unpaid Overtime As a Tow Truck Driver in New York
When an employer fails to pay an employee for the time the employee worked, the employer is likely engaging in wage theft. If you suspect your employer has not accounted for all of the time you’ve worked when calculating overtime benefits, it’s worth discussing your case with an attorney. You can pursue a claim under New York’s labor law. Successful plaintiffs are entitled to all of the unpaid overtime they did not receive. They are also entitled to attorney’s fees and costs and additional liquid damages in the amount of 100 percent of their unpaid overtime.
Discuss Your Case With a New York Employment Attorney
The employee rights attorneys at Lipsky Lowe LLP have a team of employment attorneys ready to help you pursue the unpaid overtime you deserve from your employer. We will also pursue attorneys’ fees and costs and liquidated damages. Our attorneys know how to hold an employer accountable who violates state and federal laws. Contact Lipsky Lowe LLP today to schedule a free initial consultation and learn more about your legal options.