Question

Am I entitled to overtime pay in New York?

Joseph A. Fitapelli - Employment & Labor - Super Lawyers

Answered by: Joseph A. Fitapelli

Fitapelli & Schaffer, LLP
New York, NY
Phone: 212-300-0375
Fax: 212-481-1333

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Answer

An employer covered by Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) must pay their eligible employees overtime pay. One of the factors that determine overtime eligibility is how the employee is paid. Some of the common ways an employer pays an employee is hourly, by salary, or some other agreed upon method (e.g., piecemeal). The majority of employees who are paid hourly will be eligible for overtime pay in the amount of one and one-half times their regular hourly rate for all the hours worked over 40 in a workweek. For example, at this moment the New York State minimum wage rate is $7.25 per hour, thus an employee who receives the minimum wage rate would receive $10.88 each hour they worked in excess of 40. This is also true for employees who receive tips as part of their job (i.e., restaurant service employees). For example, at this moment the New York State minimum wage rate for a service employee is $5.00 per hour; however, their overtime hourly rate is $8.63 (taking into account the employer tip credit provisions of NYLL).

Employees, who are paid on a salary basis, are still likely to be eligible to receive overtime pay. In order to avoid paying salaried employees overtime, the employer has the burden of proving that an exemption applies. However, many employers misclassify their employees as exempt from the overtime provisions of the FLSA and the NYLL in order to save money on labor costs. It’s important to understand that your job title (e.g., “vice president” or “assistant manager”) does not determine whether or not you are an exempt employee; your primary duties are the main factor. This area of law is very detail oriented and is evaluated on a case-by-case basis; therefore, if you are not being compensated for overtime you should consult an experienced employment attorney.

Potential Recovery

Eligible employees who were not compensated for overtime they worked are entitled to damages of one and one-half times their regular rate of pay for every hour worked in excess of 40 in a workweek and may also be entitled to interest, attorneys’ fees, and liquidated or double damages for the overtime violations. In New York, there is a six-year statute of limitations; therefore, if you feel you are entitled to overtime and are not being compensated then please consult our experienced employment lawyers, to discuss your rights under the NYLL.

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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