Unpaid Overtime

Unpaid Overtime Attorneys Serving New York City

Under the federal Fair Labor Standards Act (FLSA) and the New York and New Jersey Labor Laws, employers are required to pay all “non-exempt” employees one-and-one-half (1.5) times their regular hourly rate for every hour worked over 40 in a week. Serious consequences exist for employers that do not. Lipsky Lowe has extensive experience for representing companies and individuals in the all forms of wage and hour actions from the most basic single plaintiff matters to complex class, collective and hybrid actions.

Who is Entitled to Overtime?

All “non-exempt” employees are entitled to overtime pay. Who qualifies as “non-exempt” depends on (i) how they are paid and (ii) the type of duties they perform.

Hourly Employees

Hourly employees like restaurant workers are usually the most obvious example of a “non-exempt” employee. Employees paid by the hour must be paid one-and-one-half times their regular hourly rate for all hours worked over 40 in a week. For example, if your regular hourly rate is $30 and you worked 45 hours in a week, you should be paid $45/hr. ($30 x 1.5 = $45) for each the 5 additional hours you worked, for a total of $225 in overtime premium pay, on top of the $1,200 paid for hours 1-40. If your employer paid you $30 for all 45 hours, you are entitled to the difference between what you were paid for the hours above 40 and what you should have been paid, and perhaps additional amounts in the form of liquidated damages and interest

Salary Employees

While paying an employee on a salary basis is necessary to establish many of the exemptions to overtime, simply paying a salary does not render the employee exempt from receiving premium overtime compensation. Similarly an employee’s title is not a factor in his or her exemption status. Instead the employees’ duties largely determine if they are entitled to overtime or exempt. As a general rule, the less discretion, flexibility and authority an employee has in performing his or her duties, the less likely they will qualify for any exemption.

Here is a list of jobs that are usually properly classified as exempt and accordingly not entitled to overtime:

  • Executives (Individuals who supervise 2 or more full-time employees and can hire, fire, determine compensation, and discipline employees)
  • Administrative personnel
  • Outside salespeople
  • Licensed professionals (such as doctors, lawyers, CPAs)
  • Those with expert computer skills
  • Independent contractors or consultants
  • Those who require advanced degrees for the work they do

Here is a list of jobs that are typically misclassified as exempt and are actually entitled to overtime:

  • Back office financial employees
  • Account executives
  • Analysts and researches
  • Customer service representatives
  • Computer help desk

Class and Collective Action: The Benefits of Group Actions

Many wage and hour matters, including claims for overtime, are brought as a class and/or collective action. The basic difference being that once a class action has approved by the court, the applicable current and former employees are in the class unless they opt out. In a collective action, however, you must affirmatively opt into the case. Our experienced employment attorneys have the knowledge and expertise to handle class and collective actions large and small. In fact, Lipsky Lowe attorneys have handled local to national class/collective actions for over 15 years.

There may be benefits to both the employer and employees to resolve all matters in a class or collective action. For example, each individual may have damages relatively too small to justify filing individual actions, while the employer may experience greater efficiencies and lower costs by resolving all claims in the group in a single stroke.

Types of Damages

Damages for unpaid overtime fall into two categories: compensatory and liquidated. Compensatory damages are payment for the lost wages. Liquidated damages are designed to punish the company for willful misconduct. Generally, under the FLSA and state laws, liquidated damages equal 100% of the owed amount. So, for example, if you are owed $1,000 in overtime and liquidated damages are awarded, you will receive $2,000. You may also be entitled to statutory interest.

How Lipsky Lowe LLP Can Help

We have the skills and experience to evaluate your legal options and to provide the services you need in the wage hour arena. With Lipsy Lowe, you have strength in your corner. Contact us today to schedule a consultation.

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