Question

Is My New York Employer Paying Me Correctly?

Louis D. Stober, Jr. - Employment & Labor - Super Lawyers

Answered by: Louis D. Stober, Jr.

Law Office of Louis D. Stober, Jr. LLC
Mineola, NY
Phone: 516-742-6546
Fax: 516-742-8603

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Answer

First, it is important to determine if you are entitled to overtime and review the number of hours you work in a regular workweek. Second, look at when your employer pays you overtime. 

Generally, you are entitled to overtime if you work more than eight hours in a day or more than 40 hours a week. New York State Department of Labor laws require employers to pay overtime the week after you earn it. This means you should receive overtime payments by your next pay period. If you are waiting four to six weeks on overtime, ask questions.

Handwritten Tracking to Software Issues

Some employers still track overtime hours on handwritten forms that must go through manager review before getting to payroll. Out-of-date software systems may not “talk” to each other and require data entry into two or more business systems. The number of employees within an organization may also cause delays in processing.

None of these is a valid excuse that would exempt an employer from this timeliness requirement. New York law allows you six years to bring a claim. You may be entitled to damages, and your employer could be fined for violations.

Calculation Errors

Mistakes are all too common in calculating overtime. Certain add-ons – for example a longevity payment or shift differential – should be included when calculating an overtime rate. An extra $3 shift differential might not seem like much, but if excluded from hundreds of overtime hours over years, it adds up.

Tip employees are also entitled to overtime. And an employer cannot calculate an overtime rate based solely on the base rate without considering tip income.

Compensatory Time in Lieu of Overtime

If your employer allows you to, you can accrue comp time, but your employer cannot require this. It is your choice whether to take comp time or overtime pay. Regular employees may only accumulate 240 hours of comp time before they must receive overtime pay.

Starting a new job may lead you to question whether pay practices seem right. But even after years with an employer that has ignored your questions or complaints, you still could have legal recourse.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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