New York Overtime Wage and Hour FAQs

Employment Law Attorneys Advising Workers in New York City

Employers often fall subject to the temptation to cut corners and costs whenever possible, even if this is not permissible under federal and state laws. When this happens, employees whose rights are infringed may be able to hold their employers accountable. The wage violations lawyers at Phillips & Associates can offer knowledgeable advice to New York City workers who are considering legal action. We can counsel you on your options and help you determine your next steps.

How is Overtime Calculated?

According to the federal Fair Labor Standards Act, or FLSA, an employee must be paid overtime if he or she is a non-exempt employee. These individuals are entitled to overtime in the amount of one-and-a-half times the employee’s regular rate for every hour worked over 40 hours in a workweek. Typically, a non-exempt employee cannot be required to waive his or her right to overtime. The FLSA, however, does not protect an employee who over-reports overtime or who works overtime in violation of an employer’s clearly posted rule or policy prohibiting overtime work.

Overtime pay can include work performed either before or during an employee’s usual shift, as well as time spent working during an employee’s lunch break. Employers are generally required to provide their employees with as much advance notice about the potential need for the employee to work overtime as possible. In addition, employers are expected to spread overtime work among employees to prevent one employee from bearing the brunt of overtime work.

What Constitutes a Workweek?

Overtime law revolves around the concept of a workweek. In general, a workweek is a fixed and regularly recurring period of 7 days. The workweek does not need to coincide with traditional calendar days constituting a workweek, i.e., Sunday to Saturday, and it can begin and end during the middle of a calendar week. Ultimately, a workweek constitutes seven consecutive 24-hour periods. An employer can adopt different workweeks for different employees. For example, a retail employer may use a Saturday to Friday workweek for its sales staff, while it may adopt a Monday through Sunday workweek for its management staff.

What Rights Do I Have When My Employer Fails to Pay Me for My Overtime Pay?

In order to qualify for overtime compensation, an employee must be non-exempt. An employee who is classified as exempt receives a salary of at least $23,600 per year, performs exempt job duties, and is paid in salary format. In general, an employee receives a salary when he or she has been guaranteed a minimum amount of money. Additionally, exempt job duties consist of those high-level and executive, administrative, or professional tasks that are typically performed by individuals in managerial or supervisory positions. In most cases, executive job duties involve the supervision of two or more employees, and the individual exercising those executive job duties enjoys the right to provide input regarding other employees’ job status. Whether an employee is exempt from overtime can be a very specific fact-based inquiry. The assistance of an attorney can be very helpful.

If you are not paid overtime compensation when it is due, you may be entitled to compensation and an additional sum equal to that amount as a form of liquidated damages. In some instances, an employee who does not receive fair overtime pay may be entitled to attorneys’ fees and costs. Employers whose violations are willful and intentional may also be required to pay punitive damages. A court may require an employer to compensate the plaintiff-employee for all unpaid overtime wages for up to three years before the claim.

May an Employee Waive His or Her Right to Overtime Pay?

New York state law is very clear on this subject, and the answer is no. Any agreement between an employer and an employee to only include eight hours in a workday, or only 40 hours in a workweek, is considered an illegal attempt to waive the employee’s right to overtime pay. Additionally, an employer cannot require an employee to obtain advanced approval of overtime pay and threaten to forgo paying the employee for any overtime worked without prior approval.

Am I Entitled to Receive Overtime Pay for Holidays, Weekends, or Night Work?

In general, New York’s labor law does not require an employer to pay overtime pay for holiday, weekend, or night work. If, however, an individual employment agreement or collective bargaining agreement provides for increased or additional pay for time worked on holidays, weekends, or at night, the agreement is enforceable.

Consult a New York City Lawyer for Your Wage and Hour Case

If you have unfairly been denied pay that you deserve, you may have rights to assert. The wage and hour attorneys at Phillips & Associates are familiar with overtime claims brought by individuals in New York City against their employers. We have assisted employees throughout the five boroughs of the city, including in Manhattan, the Bronx, and Brooklyn. For a free initial consultation, call us at (866) 229-9441 or contact us online.

My Boss Doesn't pay Overtime. What Should I do?