new york overtime pay

Am I Entitled to Overtime if I am on Salary?

Maybe.

Just because your employer pays you a salary does not necessarily mean you are ineligible for overtime.  In other words, you may be entitled to receive overtime even if your employer tells you that you are not.

Whether or not an employee is entitled to overtime depends on the following factors:

  • First, you must make at least $455 per week. 
  • Next, you must be treated like a salaried employee – you cannot get docked for working less in a given week.  You must get paid the same every week, no matter what.
  • Finally, there is the nature of the work you do.  The more responsibility (and less supervision) you have, the more likely it is that you are not entitled to overtime.  And vice versa.

Confused?  Curious?  Just want to chat?  Contact us.  An employment lawyer is standing by to speak to you right now.

Paralegal Sues Bankruptcy Firm Over Wrongful Termination

It happens. Sometimes you end up working through lunch. Your boss is pressed for time on a deadline and needs you to lend a hand. When this happens, though, you should be compensated appropriately for your time. Unfortunately, that was not the case according to Carla Muskrath. After more than four years working as a paralegal for California bankruptcy law firm, Simon Resnik & Hayes LLP, Plaintiff was fired and has filed a wrongful termination lawsuit as a result. According to Ms. Muskrath’s allegations, her employer forced her to work through her lunch break and did not compensate her by paying her overtime. In accordance with the Fair Labor Standards Act, employers are required to pay one and a half times an employee’s hourly wage if he/she works more than 40 hours in a week. Ms. Muskrath claimed that during her time at Simon Resnik & Hayes LLP, she was entitled to overtime pay for her work during lunch. When she finally decided to stand up to her employer and begin taking her scheduled 30-minute lunch, she was retaliated against. Plaintiff was promptly fired.

In response, Ms. Muskrath filed a wrongful termination law suit in the Los Angeles County California Superior Court. In her claim, Ms. Muskrath indicates that in addition to not compensating her for overtime, the employer did not keep records of all of the hours that she worked.

It is unfortunate, but these situations occur frequently. Retaliation and wrongful termination can lead to financial and emotional stress. If you feel that you have been wrongfully terminated, contact the experienced NY employment law firm of Granovsky & Sundaresh. You may be entitled to monetary compensation, medical benefits, attorney fees, and more.

Courts Rule Alien Workers Have Rights Under FLSA

In March, 2013 Eleventh Circuit Court of Appeals held that “there is nothing in the [Fair Labor Standards (“FLSA”)] that would allow us to conclude that undocumented aliens, although protected by the Act, are nevertheless barred from recovering unpaid wages thereunder.”  Lamonica v. Safe Hurricane Shutters, Inc.  An undocumented alien’s “ability to recover unpaid wages under the FLSA does not depend upon his immigration status.” Four months later, on July 29, 2013, another federal appellate court, the Eighth Circuit Court of Appeals ruled that, “aliens, authorized to work or not, may recover unpaid and underpaid wages under the [Fair Labor Standards Act].”Lucas v. Jerusalem Cafe, LLC.

The United States Department of Labor’s policy was and is to enforce the FLSA “without regard to whether an employee is documented or undocumented.”

Although it is still unclear to the exact extent that these rulings will affect illegal alien workers, one thing is clear: the FLSA protects alien workers from being underpaid or unpaid.

Am I Entitled to Overtime?

Most employees are entitled to overtime if they work over 40 hours/week.  Just because you are paid a salary does not mean that you cannot get overtime.  Nor can your company offer you “comp time” instead of paying you.  If you are entitled to overtime, you must be paid time and a half for any week you work over 40 hours. You are not entitled to overtime if:

You are an executive: This means your weekly salary is at least $455, and your primary job duty is managing the company or a department/subdivision.  You must also to supervise at least two full-time employees, and have the authority to hire/fire them, or at least make recommendations on hiring/firing.

You are an Administrator: This means your weekly salary is at least $455, and your primary job duty is office or non-manual work directly related to management or business operations.  Your job must involve using discretion and independent judgment regarding matters of significance.

You are a “Learned Professional”: This means your weekly salary is at least $455, and your primary job duty is performing work requiring advanced knowledge, predominantly intellectual, and the consistent exercise of discretion and judgment. For example, doctors, and registered nurses are learned professionals.

You are a “Creative Professional”:   This means your weekly salary is at least $455, and your primary job duty is requires invention, imagination, originality or artistic talent.

You are a “Computer Employee”: This means your weekly salary is at least $455 you are a computer systems analyst, computer programmer, software engineer or other similarly skilled worker in the computer field.  Your primary job duty must be applying systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; or design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; or design, documentation, testing, creation or modification of computer programs related to machine operating systems; or a combination of these.

You are an outside sales professional:   This exemption applies where the primary job duty is making sales, obtaining orders or contracts for services or use of facilities and you regularly work away from the company’s place of business.

You are a highly-compensated employee: People who make over $100,000 a year are generally exempt from overtime.

You are a motor carrier: Drivers, driver’s helpers and mechanics (as well as others involved in vehicle safety or a motor vehicle used as transportation, the FLSA does not apply to you and the relevant law is the Federal Motor Carrier Act.

These are some of the main exemptions but there are many more.

If you think that you have been denied overtime, please contact us.  At attorney from our firm will get back to you within 24 hours.

NY Overtime Lawyers

NY Overtime Lawyers New York Overtime rules provide that you are entitled to overtime in New York for any amount of time worked over 40 hours.  Specifically, you are entitled to 1.5x your hourly rate for any overtime in excess of 40 hours.  If you have been denied overtime in New York, you may be entitled to additional damages beyond the wages that are already owed to you. New York Overtime Rules also provide for numerous exemptions.  For example, administrators, executives and professionals earning a minimum of $455 per week are exempt and not entitled to overtime.  But often, employers misclassify employees and tell them that they are exempt from overtime when they are not. Our NY Overtime Lawyers can help.

New York Overtime Rules are very complicated.  If you have not been paid overtime for any reason, please contact a NY Overtime Lawyer at our firm for a free initial consultation.  Know your rights!

NY Overtime Pay | How to Calculate Overtime Pay

How do I calculate Overtime Pay? Just because your boss tells you that you are not entitled to overtime does not make it true.  Countless people are misled into believing that they are not entitled to overtime.  To determine how much you might be owed, calculate as follows:

If you are an hourly employee:

●         Multiply your hourly rate by 1.5.  If you normally make $20 for every hour worked, multiply this by 1.5 to get to $30 per hour of overtime.

●         Multiply your total number of hours over 40 in a week by your overtime rate.  If you worked 45 hours, you are owed 5 overtime hours of overtime at $30 per hour of overtime, your company owes you $150 for overtime pay.

If you are a salaried employee:

●         Determine your weekly salary.

●         Determine your overtime premium rate.  To determine your overtime premium rate first, calculate your regular hourly rate by dividing your weekly salary by the number of hours worked that week.  Divide this number by two for your overtime premium rate.

●         If you are entitled to overtime, the company owes you your weekly hours over 40 times your overtime premium rate.

 

If you believe that you have been denied overtime pay as a NY or NJ employee, please contact us.

FLSA Basics

I.          Misclassification as Exempt Under the federal Fair Labor Standards Act ("FLSA") some employees are exempt from receiving (or are not entitled to) overtime pay.

However, unless you qualify for one of the overtime exemptions, it is likely your employer should be paying you one-and-one half times your regular rate of pay for any hours you work in excess of forty hours per work week.  If you work more than forty hours per work week but do not receive overtime pay, and you do not qualify for any of the following exemptions, you may be misclassified and could be entitled to up to three years of unpaid overtime.

A.        Executive Exemption

In order to qualify for the FLSA's executive exemption, the following four tests must be met:

  • You must be compensated on a salary basis at a rate not less than $455 per week;
  • Your primary duty must be managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise;
  • You must customarily and regularly direct the work of at least two or more full-time employees or their equivalent; and
  • You must have authority to hire or fire other employees, or your suggestions and recommendations as to hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.

If your employer has classified you as exempt from the FLSA's overtime requirement under the executive exemption, but you do not meet all four tests above, you may be misclassified and could be entitled to up to three years of unpaid overtime.

B.        Administrative Exemption

In order to qualify for the FLSA's administrative exemption, the following three tests must be met:

  • You must be compensated on a salary basis at a rate not less than $455 per week;
  • Your primary duty must be the performance of office or non-manual work directly related to the management or general business operations of your employer or your employer's customers; and
  • Your primary duty must include the exercise of discretion and independent judgment with respect to matters of significance.

If your employer has classified you as exempt from the FLSA's overtime requirement under the administrative exemption, but you do not meet all three tests above, you may be misclassified and could be entitled to up to three years of unpaid overtime.

C.        Professional Exemption

There are two types of professional exemptions under the FLSA: (1) the learned professional exemption; and (2) the creative professional exemption.

In order to qualify for the FLSA's learned professional exemption, the following four tests must be met:

  • You must be compensated on a salary basis at a rate not less than $455 per week;
  • Your primary duty must be the performance of work requiring advanced knowledge, defined as work which is predominately intellectual in character and which includes work requiring the consistent exercise of discretion and judgment;
  • The advanced knowledge, discussed under number 2, must be in a field of science or learning; and
  • The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction.

If your employer has classified you as exempt from the FLSA's overtime requirement under the learned professional exemption, but you do not meet all four tests above, you may be misclassified and could be entitled to up to three years of unpaid overtime.

In order to qualify for the FLSA's creative professional exemption, the following two tests must be met:

  • You must be compensated on a salary basis at a rate not less than $455 per week; and
  • Your primary duty must be the performance of work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

If your employer has classified you as exempt from the FLSA's overtime requirement under the creative professional exemption, but you do not meet both tests above, you may be misclassified and could be entitled to up to three years of unpaid overtime.

D.        Highly Compensated Employees

If you perform office or non-manual work and you are paid a total annual compensation of $100,000 or more, which must include at least $455 per week, you are most likely exempt from the FLSA's overtime requirement if you customarily and regularly perform at least one of the duties of an exempt executive, administrative or professional employee, discussed above.

E.        Computer Related Exemption

In order to qualify for the FLSA's computer related exemption, the following three tests must be met:

  • You must be compensated on a salary basis at a rate not less than $455 per week or be compensated on an hourly basis at a rate not less than $27.63 an hour;
  • You must be employed as a computer system analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field; and
  • Your primary duty must consist of at least one of the following: (1) the application of systems analysis techniques and procedures, including consulting with users, to determine hardware, software or system functional specifications; (2) the design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications; (3) the design, documentation, testing, creation or modification of computer programs related to machine operating systems; or (4) a combination of the aforementioned duties.

If your employer has classified you as exempt from the FLSA's overtime requirement under a computer related exemption, but you do not meet all three tests above, you may be misclassified and could be entitled to up to three years of unpaid overtime.

Note: the FLSA's computer employee exemption does not include employees engaged in the manufacture or repair of computer hardware and related equipment.  If you are engaged in either of these activities, and you do not otherwise qualify for a different FLSA exemption, your employer most likely must pay you overtime.

F.         Outside Sales Exemption

In order to qualify for the FLSA's outside sales exemption, the following two tests must be met:

  • Your primary duty must be making sales or obtaining orders or contracts for services.
  • You must be customarily and regularly engaged away from your employer's place of business.

Unlike many other FLSA exemptions, you need not be paid a certain amount per week to qualify for the outside sales exemption.

If your employer has classified you as exempt from the FLSA's overtime requirement under the outside sales exemption, but you do not meet both tests above, you may be misclassified and could be entitled to up to three years of unpaid overtime.

G.        Retail or Service Establishment Exemption

In order to qualify for the FLSA's retail or service establishment exemption, the following three tests must be met:

  • You must be employed by a retail or service establishment.  Retail and service establishments are defined as establishments 75% of whose annual dollar volume of sales of goods and/or services is not for resale and is recognized as retail sales or services in a particular industry;
  • More than half of your total earnings must represent commissions; and
  • Your total compensation divided by the number of hours you work or your regular hourly rate must be greater than one and one-half times (150%) the federal minimum wage.

If your employer has classified you as exempt from the FLSA's overtime requirement under the retail or service establishment exemption, but you do not meet all three tests above, you may be misclassified and could be entitled to up to three years of unpaid overtime.

H.        Other FLSA Exemptions

Although this list is not conclusive, if you qualify for any of the following less common FLSA exemptions, you may not be eligible to receive overtime pay:

  • You are employed by a seasonal amusement or recreational establishment.
  • You are engaged in fishing operations.
  • You deliver newspapers.
  • You are a farm worker employed on a small farm.
  • You are a casual babysitter.
  • You are an auto, truck, trailer, farm implement, boat, or aircraft salesperson employed by a non-manufacturing establishment that is primarily engaged in selling those items to ultimate purchasers.
  • You are employed by a railroad or air carrier.
  • You are a taxi driver.
  • You are a domestic service worker and you reside at your employer's residence.

II.          Preliminary and Postliminary Activities

Preliminary activities are activities which you perform before you begin your "principal" work activities.  Postliminary activities are activities which you perform after you end your "principal" work activities.  Principal activities are activities which you are employed to perform and also include all activities which are an integral (or essential) part of your employer's business.  Your employer must pay you for time spent engaged in principal, integral and essential activities.  Depending on the circumstances, time you spend in preliminary and postliminary activities may also be compensable.

Time you spend in the following preliminary and postliminary activities is not generally compensable:

  • Walking, riding, or traveling to and from the actual place where you perform the principal activities which you are employed to perform.
  • Activities that you perform either prior to or after the time that you end your principal activities.

There are two exceptions in which preliminary and/or postliminary activities are compensable:

  • Such time is considered hours worked pursuant to an express provision of a written or unwritten contract between you and your employer.
  • Such time is treated as hours worked according to custom or practice at the place where the work is performed.

III.          Calculating Overtime Pay

Under the Fair Labor Standards Act ("FLSA"), overtime compensation generally must be paid to covered employees (employees who do not qualify for an FLSA exemption) at a rate of at least one and one-half times their regular rate of pay for each hour worked in excess of 40 hours per workweek.  In addition, a covered employee's regular rate of pay must be equal to or greater than the federal minimum wage.  In most circumstances, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the overtime wages were earned.

Based on your employer's discretion, your workweek may begin on any day of the week and at any hour of the day.  However, your workweek must be a fixed and regularly recurring period of seven consecutive 24-hour periods.  Therefore, your employer cannot average your hours worked over two or more weeks to determine you hours worked per workweek.

In addition, under the FLSA, your employer is supposed to maintain records of the time you spend performing compensable work activities.  If you bring an overtime claim against your employer, but your employer has failed to maintain the required records, you are entitled to recover overtime compensation based on a good faith (reasonable and realistic) estimate of the time you worked over the past 2 to 3 years for your employer.

A.        Employees Paid by the Hour

If you are paid by the hour, your employer must pay you at least one and one-half times your regular hourly rate for each hour worked over forty hours per workweek.

B.        Employees Paid on a Piecework Basis

If you are paid on a piecework basis, your regular rate of pay is obtained by dividing your total weekly earnings by the total number of hours you work in a particular workweek.  You are entitled to an additional one-half times your regular rate of pay for each hour you work over forty hours per workweek, plus full piecework earnings.

C.        Employees Paid a Salary for a Regular or Specified Number of Hours

If you are paid a salary for a regular or specified number of hours per workweek, your regular rate of pay is obtained by dividing your salary by the number of hours your salary is intended to compensate.  You are entitled to an additional one-half times your regular rate of pay for each hour you work over 40 per workweek, plus your salary.

D.        Employees Paid a Salary on Other than on a Weekly Basis

If you are paid a salary on other than on a weekly basis, your weekly pay must be determined in order to compute your regular rate of overtime pay.  If your salary is intended to cover a half-month, it must be multiplied by 24 and the product divided by 52.  If your salary is intended to cover an entire month, it must be multiplied by 12 and the product divided by 52.

E.        Weekend and Holiday Work

Under the FLSA, you are not entitled to an overtime premium solely because you perform work on a weekend or holiday.

F.         Overtime Pay May Not be Waived

The FLSA's overtime requirement cannot be waived by agreement between you and your employer.  In addition, an announcement by your employer that no overtime work will be permitted, or that overtime work will not be paid unless it is authorized in advance, will not impair your right to compensation for compensable overtime hours worked.

 

Learn your rights.  Contact us for a free initial consultation.  An attorney from our firm will get back to you within 24 hours.

Failure to Pay Overtime in New York | NY Overtime Law

Most employees are entitled to receive one and a half (1½) times their regular hourly rate of pay for work performed in excess of forty hours per week. All time worked must be counted in calculating overtime including, all work activities and activities before and after a shift, as well as work done at home. Activities performed before assigned shifts, such as logging on to computer systems, programs, and applications, dressing in required clothing or protective gear, or preparation and/or inspection of machinery, tools, equipment or supplies are counted in determining whether the employee is entitled to overtime wages. Similarly, answering emails and texts from home is considered hours worked for purposes of calculating overtime.  Failure to pay overtime in New York is illegal.  Contact an experienced employment lawyer today for a free consultation.

Some employers fail to pay overtime because of misclassification of jobs as exempt from the federal or state wage and hour laws. This may be the result of wrongful application of the complex tests prescribed under applicable laws or regulations or failure to consider deductions from pay. Just because your employer tells you that you are not entitled to overtime does not make it so.

If you believe you have been denied overtime pay, you should contact an attorney experienced in wage and hour claims.

Am I Entitled to Overtime? Some Things to Consider...

The Fair Labor Standards Act entitles nearly every employee to time and a half for hours worked over 40 in a workweek -- including to people paid a salary rather than an hourly wage.  Although research suggests that 80% of employees are entitled to overtime, about 70% of employers are not properly paying employees. Please contact us if you believe you are improperly being denied overtime.

Below are some things to consider in deciding whether or not you are entitled to overtime:

  1. Salaried and hourly employees are entitled to overtime.  Whether or not an employee is entitled to overtime comes down to their duties, not how they are paid.  It is a common misconception that salaried employees are not entitled to overtime.
  2. If you work “off the clock” you are entitled to overtime pay.  If you come in early, work late, work through lunch, or work from home, you are entitled to compensation for all hours worked.
  3. Your employer cannot substitute “comp time,” “flex time” or “vacation time” for overtime.  You earned the money, and employer cannot offer up extra time off or other perks instead of paying you.
  4. You must be paid for overtime, even if the overtime is not approved.  Even if your employer instructs you not to work beyond 40 hours, you are entitled to pay for all time worked.  You may be disciplined for not following the orders of your employer, but you must be paid for all time worked.
  5. Employers must pay time and a half for hours over 40 in a week.  Some employers only pay straight-time for hours over 40.  This is illegal.
  6. Employers frequently misclassify employees as exempt.  Employers frequently misclassify employees and employees believe them.  Speak to one of our NY Overtime Attorneys to help determine whether or not you were misclassified.

Please also take a look at our prior posts on overtime issues, here, here, here, here, and here.

Overtime Violations and Misclassification Issues

OVERTIME VIOLATIONS Unless you are specifically classified as an “exempt” worker, your employer must pay you overtime wages for any hours you work over 40 hours in a workweek (see this prior blog entry). Your employer must pay overtime wages at a rate of at least one and one-half times (150%) your regular hourly rate.

Your employer cannot avoid paying overtime by enacting a no-overtime policy or by getting you to agree to a special deal.  Your employer must pay you according to the law.  Set forth below are some common overtime violations:

Unpaid or Improperly Calculated Overtime Pay

Overtime rules are generally based on a single workweek. If you are a non-exempt employee, you may be paid weekly, bi-weekly, or monthly.  But, your employer must calculate overtime based on the actual 40-hour workweek (the pay period does not matter).  Employers cannot average hours over two or more weeks.  Likewise, your employer cannot get you to agree not to follow the overtime rules.

Comp Time Instead of Overtime Pay

Compensatory time is paid time off generally granted to an hourly employee instead of overtime wages.  This is often referred to as "comp time."  Comp time can sometimes be legal, but the employer must pay it at 150%, which is the same rate as overtime wages.

Employees Not Allowed to Report Work over 40 Hours Per Week

Many employers have rules that no overtime work will be permitted or paid for unless authorized in advance.  Some employers choose to ignore overtime hours worked by their employees or do not allow employees to report their overtime hours. These are violations of the overtime rules.

MISCLASSIFIED EMPLOYEE VIOLATIONS

In today’s tough economy, employers face increasing pressure to lower wage and benefit costs. Not surprisingly, some employers do not obey the rules regarding classification of employees, which classification dictates whether its employees are entitled to overtime.

Has your employer not paid you overtime because you are an “exempt” employee? Or, has your employer not paid you overtime and benefits because you are a contract employee or independent contractor?   Your employer may have misclassified you.  And if so, you are losing out on the pay and benefits you deserve.

Misclassification of Employees as Exempt Workers

Exempt employees are employees who are not entitled to receive overtime pay.  Whether or not you are exempt can be confusing.  However, it has nothing to do with your job title or job description, or whether you are paid a salary or hourly. What you actually do at your job on a daily basis determines whether or not you are legally entitled to overtime.  For additional information, please visit www.dol.gov/whd/overtime_pay.htm.

Misclassifaction of Employees as Contract Employees

Contract employees or independent contractors include self-employed workers who are not covered by the tax and wage laws that apply to regular employees. Employers do not pay Social Security, Medicare, or federal unemployment insurance taxes on contract employees or independent contractors.  Thus, employers are strongly motivated to classify workers into this category to save costs.

Whether you qualify as an employee or an independent contractor is not an easy matter.  Three factors are key in determining this:

1.  Control:  Does the company control what you do and how you perform your duties? 2.  Financial:  Do you or the company set the business aspects of your work (method of payment, reimbursement of expenses, etc.)? 3.  Relationship:  Do you have a written contract? Do you receive employee-type benefits, such as a pension plan, insurance, or vacation pay? How long have you been at the company?

You are probably an employee and not an independent contractor or contract employee if the company controls what you do and how you do it, and treats you like other regular employees.  If so, you may be missing out on valuable overtime wages and employee benefits.  For more information on this issue, please see http://www.comptroller.ilstu.edu/downloads/20-factor-test-for-independent-contractors.pdf.

Some other common employer pay practices which may violate the law:

  • Paying you a salary and no overtime when you spend less than 50% of your time managing other employees;
  • Paying you a salary and no overtime with a title like assistant manager, assistant branch manager, or working lead;
  • Paying you hourly and not paying you overtime when you work in excess of 40 hours in any work week;
  • Paying you hourly and not paying you for pre-shift or post-shift work time such as uniform and clothes changing time, the time it takes you to prepare your workstation for the day, or clean up time at the end of your shift;
  • Paying you hourly, but asking you to perform work via cell telephone, email, Blackberry, Twitter, Facebook, etc. when you are not clocked in;
  • Paying you hourly, but asking you to work through your breaks and unpaid meal periods without payment;
  • Rounding you work time down to the nearest 15 minute increment (e.g., you clock in at 7:56 am and your employer rounds your time to 8:00 am); or
  • Hiring you as an “independent contractor,” “contract employee,” or “contingent worker” and not paying you overtime or benefits like regular employees.

Please contact us if you believe your employer has violated the law in paying or classifying you.