Partner
In this video, Lipsky Lowe partner Douglas Lipsky breaks down the Fair Labor Standards Act and what it means for workers in New York. The transcript and expanded explanation are below.
Key Takeaways
- The FLSA is your federal wage floor. It guarantees minimum wage and overtime pay for most U.S. workers.
- Overtime protection is the default. The law presumes everyone is entitled to it. Your employer must prove an exemption applies.
- Job titles don’t determine exemption. Both your salary level and your actual day-to-day duties must meet specific legal standards.
- Overtime is calculated weekly, not averaged. If you work 50 hours one week, you’re owed overtime for 10 hours — regardless of what you work the next week.
- Violations are recoverable. Workers who prevail can recover back pay, an equal amount in liquidated damages, and attorney’s fees.
- New York law often goes further. State and city rules provide protections beyond those required by the FLSA.
What Doug Lipsky Says in the Video
“The Fair Labor Standards Act is the federal law that says employees are entitled to be paid minimum wage and overtime equaling time-and-a-half the regular rate for every hour they work over 40. The law begins with a presumption that everyone is entitled to overtime and carves out exemptions from that. If you do not fall within those exemptions, your employer is legally required to pay you time and a half for every hour you work over 40.”
— Douglas Lipsky, Partner, Lipsky Lowe LLP
The Presumption That Protects You
The FLSA does not list who qualifies for overtime. It does the opposite: it starts from the position that every worker is covered, then carves out exemptions for specific categories. That structure matters because it places the burden on your employer to prove you are exempt, not on you to prove you qualify. If your employer cannot clearly show your role meets the legal definition of an exempt position, you are owed overtime.
Who Is Exempt From Overtime?
The most commonly used exemptions are the white-collar categories: executive, administrative, and professional employees. To qualify, a worker must earn at least $684 per week in salary and have primary job duties that meet the specific legal definition of that category. Both conditions must be satisfied. A high salary alone is not enough. A title like “manager” or “supervisor” is not enough. Employers regularly misapply these exemptions — sometimes deliberately — to avoid paying overtime to workers who legally deserve it.
How Overtime Is Calculated
Overtime is calculated on a per-workweek basis, not averaged across multiple weeks. If you work 50 hours one week and 30 the next, your employer owes you overtime for 10 hours in the first week, full stop. The rate is 1.5 times your regular pay rate. For workers whose compensation includes commissions, bonuses, or other variable pay, calculating the regular rate correctly can be complex, and errors there are a common source of underpayment.
Common Ways Employers Get This Wrong
- Misclassifying non-exempt employees as exempt to avoid paying overtime
- Requiring off-the-clock work before or after scheduled shifts
- Failing to count all compensable time, including certain training or preparatory tasks
- Telling salaried workers they are ineligible for overtime when the exemption does not actually apply
Frequently Asked Questions
My title is “manager.” Am I exempt?
Not necessarily. The executive exemption requires that management be your primary duty, that you regularly direct at least two full-time employees, and that you have genuine authority over hiring or firing decisions. A title alone does not make someone exempt.
How far back can I recover unpaid overtime?
The FLSA generally allows recovery for the past 2 years. If the violation was willful, the lookback period extends to three years. New York Labor Law claims may allow for additional recovery.
Can my employer retaliate against me for raising a wage complaint?
No. The FLSA prohibits retaliation against workers who assert their rights under the law. Termination, demotion, or reduced hours in response to a wage complaint can support a separate retaliation claim.
Think You May Be Owed Overtime?
If your employer has told you that you are exempt, or you have been working more than 40 hours without overtime pay, it is worth a conversation. New York wage-and-hour law and the FLSA provide workers with real tools to recover what they are owed. Contact Lipsky Lowe for a free, confidential consultation.