Wage and Hour
New York City and Long Island Unpaid Overtime and Unpaid Wages
Whether inadvertent or intentional, failures to pay the minimum wage and unpaid overtime are types of wage theft on the part of employers. Employers have an obligation to pay their employees fairly, based on federal and state labor laws. The Fair Labor Standards Act (FLSA) and New York wage and Hour Law dictate what wages are fair and how they must be paid.
What Is Overtime?
Under the FLSA, working overtime refers to working more than 40 hours in one workweek. Any hours worked over 40 are subject to FLSA overtime.
How does overtime work? You take whatever the employee’s hourly rate is and multiply it by 1.5. This is how to compute overtime pay. For example, if the employee earns $20 per hour and worked a 40-hour workweek, the pay would be $800. If the employee worked 10 hour of overtime, then time and a half is $30 per hour, which results in an additional $300, totaling $1100 for the 50-hour workweek.
Our Legal Focus
How Does Unpaid Overtime Occur?
Ways in which employers try to evade or circumvent the overtime laws and cheat workers out of pay often include the following:
- Averaging the hours worked over a two-week instead of a single week work period. For example, one week the employee worked overtime hours and the other week the employee worked less than 40 hours. Averaging the two weeks can result in no overtime being paid or less overtime than was worked. This could occur when employees are paid bi-weekly instead of weekly.
- The employer may force employees to “clock out” but order them to continue working.
- The employer may have employees do work before clocking in.
- Misclassifying an employee as exempt, such as an independent contractor instead of an employee can result in unpaid overtime. Independent contractors do not get paid for overtime.
- Employers may avoid paying overtime by paying the employee based on salary. However, salaries under a certain monetary amount require paying the worker for overtime work.
- Having the employee stay at home while on call for work or having the employee work from home and not counting that time worked is another way some employers avoid paying overtime.
- By using day rate pay, many construction companies or contractors pay workers a day rate and fail to pay for overtime work. An employee who is paid a day rate is still entitled to pay overtime (time and a half) for time worked over 40 hours in a workweek.
Independent Contractor Misclassification
Miscalssifying an employee as “Independent contractor” is another way in which employers sometimes cheat workers out of overtime pay. They hire workers and classify them as independent contractors. By doing so, they avoid paying employee payroll taxes and overtime pay. However, if the employer has the right to control and direct the worker, this factor may make the worker an employee, not an independent contractor. Other factors that define employee status rather than independent contractor status include:
- Paying on an hourly, weekly or monthly basis
- Providing workers with equipment, tools and materials
- Training workers, either formally or informally
- Paying workers predetermined earnings and not significant profit
- Keeping workers for ongoing work, not on a job of project basis
A Client’s Testimonial about an Overtime Pay Case
5.0 star Avvo Review
Posted by Ken
August 31, 2016
I had a problem with the company I work for. I was told that I would be shifted from exempt to non-exempt. I did some checking on the web and found out that I was probably due some overtime pay. My company said no way. I thought about it and looked up a labor lawyer and found Peter.
He sent a letter to my company and they still said no. I then filed a lawsuit and we managed to settle the case.
I have the highest respect for Mr. Romero.
Wage and Hour Rights Under New York Laws
New York wage and hour laws provide workers with greater protection than federal laws. Here are some facts you may not know about your rights to claiming wages:
- You can recover unpaid wages for work performed by you during the last 6 years, plus interest at 9% per year.
- In addition to receiving overtime pay for unpaid overtime, you may recover an additional amount equal to the wages as “double” damages.
- If you have done construction, replacement, maintenance or repair work on “public works” projects (for example in schools, public parks, bridges, tunnels, etc.) you may be entitled to prevailing wages and supplemental benefits. Prevailing wages are much higher than the wages paid in private, non-union jobs.
- If you work in a restaurant, you are entitled to one extra hour’s pay for each day that you work more than 10 hours in a single day.
- If you are paid minimum wage and work more than 10 hours in one day you are entitled to an extra hour’s pay. This is based on New York’s “spread of hours” pay.
- If you are a tipped employee and your employer requires you to perform excessive work before the restaurant opens or closes, you might be entitled to additional wages.
- If you are a tipped employee and are required to share your tips with individuals who do not service customers, you may have a claim for stolen tips.
- If you work for a restaurant, hotel or catering hall you may be entitled to receive the service charge paid by customer. Service charges are not tips. Tips are voluntary, but service charges are additional charges or predetermined charges added to customers’ bills.
- If your employer requires you to wear a uniform while working, you may be entitled to a weekly uniform allowance.
- Employers may not deduct the cost of lost or damaged merchandise or equipment from your pay.
- Employees have the right to bring a lawsuit to recover unpaid wages for themselves and on behalf of other employees.
- Your immigration status does not prohibit you from recovering unpaid wages through a lawsuit, even if you are undocumented.
- It is illegal for you employer to fire, suspend or retaliate against an employee for claiming unpaid wages.
- New York labor law requires that manual works be paid weekly, not bi-weekly.
Minimum Wage Law
The federal government sets a minimum wage standard, and in addition many states have their own minimum wages, which are higher than the federal standard. New York State minimum wages apply to the entire state with the exception of New York City, Long Island and Westchester, which also have their own higher rates. The minimum wage has been increasing since 2016. New York City currently has a minimum wage of $15.00 for all employees, while Long Island and Westchester’s minimum wage is $13. The minimum wage for the rest of NY State is $11.80. Tipped employees in the restaurant, hospitality and other industries that involve tipping, have different, lower minimum wage rates.
Statute of Limitations
The statute of limitations (deadline) for filing a wage or overtime claim under the FLSA is two years from the date after the wage violation. However, when filing a claim based on NY Labor law, the statute of limitations is six years.
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