Question

“Am I entitled to overtime pay when I’m paid a salary 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

Frequently, salaried employees are misclassified as exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) in order to save money on labor costs. Employers give their employees a prominent job title (e.g., vice president; manager; assistant manager) and require them to work over 40 hours per workweek in exchange for receiving a set salary. However, your job title or the fact you’re paid a salary does not determine whether you are entitled to overtime pay. The main factor in this determination is what primary duties you perform; basically what tasks you perform for the majority of your work shift.

The most common exemptions used by employers are the executive, administrative, and highly compensated employee exemptions. Generally, an individual qualifies for the executive exemption when his or her primary duty is managing the enterprise, he or she “customarily and regularly” supervises two or more employees and he or she has the authority to hire and fire other employees. An individual falls under the administrative exemption when his or her primary duty is office or non-manual work relating to the management of business operations and he or she must exercise discretion and independent judgment regarding matters of significance. For an individual to qualify under the highly compensated employee exemption he or she must receive an annual salary of at least $100,000 and also perform one or more of the tasks specified in the executive or administrative exemptions. Whether an employee satisfies the requirements for an exemption depends on his or her employment as a whole. Just because he or she occasionally perform some of these tasks does not mean he or she is exempt from receiving overtime pay. That’s why it’s essential to contact an employment lawyer to discuss the details of your job. Each position is different and is, therefore, judged on case-by-case basis.

Potential Recovery

If you bring a successful action against your employer, you may be entitled to time and one-half your regular pay rate, liquidated damages, interest, and attorneys’ fees. For example, if you are misclassified as an exempt employee, make an annual salary of $52,000, and work 50 hours per week, your regular pay rate would be $25 per hour (($52,000 / 52) / 40) and your overtime pay rate would be $37.50 ($25 * 1.5).

Contact Fitapelli & Schaffer, LLP

If you feel you are entitled to overtime and are not being compensated then please consult our experienced employment lawyers, (212) 300-0375, to discuss your rights under the FLSA and 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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