SO WHAT’S THE DEAL WITH OVERTIME AND WHY AREN’T I GETTING IT?

Overtime Pay in New York

Many employees in New York are eligible for overtime pay if they work more than 40 hours per week. Unless an employee has a job that is specifically exempt from the overtime requirement under state and federal law, employers are required to pay employees time-and-a-half for all hours worked in excess of 40 hours per week.  Time-and-a-half means an employee is entitled to 1.5 times their hourly rate for all hours worked over 40 in a given week.  For example, if an employee is paid $20 hour and works 50 hours per week, that employee should be paid $20 x 40 ($800) in regular pay, and $35 x 10 ($350) for overtime hours worked, for a total of $1,150.

Determining Who Is Exempt from Overtime

A common misconception is that eligibility for overtime is determined based solely on your job title or whether you are salaried. That is simply not true.  Instead, it is your employment classification that determines how your employer pays you and the benefits to which you are entitled. In New York, you can find these classifications and the legal protections associated with them in the New York State Labor Law.

Some examples of jobs that are exempt and thus not subject to receiving overtime are:

• Executive Employees
• Administrative Employees
• Professional Employees
• Outside Salespeople
• Individuals Working for a Federal, State, or Municipal Government
• Farm Laborers
• Certain Volunteers, Interns and Apprentices
• Taxicab drivers
• Members of Religious Ordersl
• Certain Individuals Working for Religious or Charitable institutions
• Camp Counselors
• Individuals Working for a Fraternity, Sorority, Student or Faculty Association
• Part-time Baby Sitters

Unfortunately, employers often mis-classify employees as exempt from overtime, and many employees are unaware of their right to overtime compensation. As a result, many employees are not paid wages they are owed under the law.

Common Misclassifications 

Another trick employers use to avoid paying overtime is misclassifying employees. Misclassification that results in failure to pay overtime wages can occur in three ways: 

• Incorrectly labeling an employee as an independent contractor. Independent contractors are not eligible for overtime wages, since they are not on the business’ payroll. However, independent contractors must have a certain amount of independence to be correctly classified as an independent contractor. For example, does the business set your work hours? Are you required to be in the office? Is there a uniform you must wear or a standard set of procedures you must follow, which are set by the business? Does your income come from one business? If the answer is yes to any of these questions, you may not be an independent contractor, and if you work more than 40 hours per week, you may be entitled to overtime wages.
• Providing job titles that do not match day-to-day work duties. Determining whether you are exempt or not is highly dependent on your job duties, not just your job title. For example, at first glance an administrative assistant may seem to meet the “administration exemption” criteria under the Fair Labor Standards Act. However, just because “administrative” is in the job title does not mean the work involves making administrative decisions on matters of significance for the business, which is a requirement to meet this exemption.

3)    Failing to provide an employee overtime wages because the employee is salaried. Just because you are salaried does not in itself mean you are exempt from getting overtime wages. If you are not exempt from overtime wages, your employer is responsible for calculating your hourly wage equivalent and providing you with overtime pay when you work more than 40 hours per week. Additionally, certain employees may meet the “highly paid” exemption if they are salaried; however, many salaried employees do not qualify for this exemption.

Who is Going to Pay for All This? Attorney’s Fees, Liquidated Damages, Cost and Interest

Federal and State Laws require that attorney’s fees, liquidated damages, costs and interest to be paid to an employee that prevails in an overtime claim. 29 U.S. Code § 216, otherwise known as the Fair Labor Standards Act (“FLSA”).  The FLSA provides that the Court shall allow a successful employee to recover his or her reasonable attorney’s fees, as well as the costs associated with pursuing their rights in a legal action.  More specifically, the Courts in New York have held that an employee who “prevails” in an FLSA action shall receive his or her “full wages plus the penalty without incurring any expense for legal fees or costs. This takes the financial burden off of an employee and places it squarely on the shoulders of their employer, allowing them to come forward and enforce their rights without paying an expensive retainer to secure the services of a highly skilled attorney who specializes in wage and hour claims, as does The Van De Water Law Firm, P.C.

Similarly, the New York Labor Law in §§ 198(1-a) strongly supports its Federal overtime counterpart by stating that “In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.”.

We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email, cell phone: (516) 384-6223, office (631) 923-1314.  More information can be found at The Van De Water Law Firm P.C.

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