Do I have an overtime claim? If you think that you may have an overtime claim, chances are that you do. Below are a few frequently asked questions about New York Overtime Law that can help you to determine whether you have an overtime claim or a claim under the Fair Labor Standards Act (“FLSA”) or NY Overtime Law Law. If you think you are entitled to overtime, you should contact us for a free consultation.
Q: What do the terms overtime hours and overtime pay mean?
Overtime hours means the time an employee works more than 40 hours per work week. Under federal law and the NY Overtime Law, overtime pay must equal at least one and one-half times an employee's regular rate of pay. So, if an employee regularly makes $10/hour, that employee is entitled to make $15/hour for all the overtime hours he or she works.
Q: Who must be paid overtime pay?
Most employees are entitled to overtime pay. You are probably entitled to overtime pay unless your job is an "executive," "administrative," and "professional" positions. Whether or not you fall into one of these categories depends on the specific nature of your job. If you have questions about NY Overtime Law, you should talk to a lawyer.
Q: What if I have no written records or proof of the hours I worked?
You do not need written records or proof of the number of hours you worked. It is the employer's duty to maintain certain records regarding your work hours and pay. If your employer does not have those records, your testimony under oath will be sufficient to prove your claim.
Q: Do I have to be paid overtime pay for working more than eight hours in one day?
No. Overtime pay must only be paid when you work more than 40 hours in week, and not more than eight hours in any one day.
Q: What if my employer tells me that I am an independent contractor?
You may still be entitled to overtime pay because your employer may be wrongly telling you that you are an independent contractor. Whether or not you are an independent contractor depends on a variety of factors that we will need to discuss with you before we can give you an answer.
Q: What if I work 30 hours in one week and 50 hours in the next week, can my employer average the two weeks to avoid paying me overtime?
No. This is a common method employers use to avoid paying overtime. The averaging of workweeks is expressly prohibited by law. You are entitled to receive overtime pay for each individual week you work more than 40 hours. In the above example, you are entitled to receive overtime pay for the 10 hours you worked more than 40 hours in week two.
Q: Is it legal that I am paid "comp time" instead of overtime?
Unless you work for the state or federal government, an employer providing compensatory or "comp time" instead of overtime pay is illegal.
Q: My employer tells me I am exempt from the overtime pay laws, am I?
Not necessarily. You are exempt based on your job duties and responsibilities and not based on what your employer calls you. It makes no difference if your employer calls you exempt or gives you a job title such as "manager" or "supervisor." It is a common practice for employers to give workers the title of "assistant manager" to avoid paying overtime when those employees are not exempt and should be paid overtime.
Q: Can I still be entitled to overtime pay if I am a salaried rather than hourly employee?
Yes. This is one of the common misconceptions about overtime pay. You are not exempt just because you are paid a weekly salary. If you are not otherwise exempt under the FLSA, your employer must convert your weekly salary to an hourly rate and pay you time and a half for all hours worked in excess of 40 hours.
Q: When should I file a claim against my employer?
The longer you wait the less overtime pay you may be able to recover. It is also best to promptly pursue your claim so that time records and witnesses are readily available.
Q: Can my employer fire me for bringing an overtime claim against it?
No. It is illegal for an employer to fire or in any way retaliate against an employee because he or she has filed a claim for overtime against the employer. We will help protect you if your employer tries to retaliate against you for filing an overtime claim.
Q: What should I do if I believe that I am owed overtime pay?
You should seek legal advice. The overtime laws are highly technical and we can help apply the law to your special situation. Our experienced NY Overtime Lawyers provide free consultations and will tell you if you are owed earned wages and if we can help you.
Q: How much does it cost to file a claim?
In most cases, all costs for overtime and unpaid wage cases will be advanced by our firm. Because our fee is typically contingent on a recovery from the employer, the firm does not get paid or reimbursed for expenses until the recovery is made.
Q: Do I have to pay attorneys fees to you if I lose my case?
No. We will only receive a fee if we are successful in resolving your claim.