Although it is true that most employees in New York are eligible to receive overtime, not everyone is.
What Is Overtime?
Under the Fair Labor Standards Act (FLSA), which is a federal law, employees who are categorized as nonexempt must be paid at least 1 ½ times their regular rate of pay for any additional hours worked after the standard 40 hour work week. There are a few cases, however, regarding certain residential employees who earn overtime after additional hours worked after 44 hours.
Some states, like New York, have created their own laws regarding who is owed overtime pay which means that while an employee may be exempt under the FLSA, they are considered nonexempt in New York.
Who Is Exempt In New York?
Under New York State Labor Law, Section 651 and the FLSA, the following occupations are exempt from overtime pay:
- Taxi drivers
- Individuals working for religious or charitable institutions
- Members of religious orders
- Executive employees
- Administrative employees
- Camp counselors
- Outside sales reps
- Farm workers
- Part-time babysitters
- Federal, State, or Municipal government employees
- Fraternity or Sorority employees
Outside of these few types of employees, New York employees should be given overtime.
Am I An Administrative Employee?
To determine if an employee qualifies as exempt for being an administrative employee, the federal government has created a “test”. Under the test, the employee must:
- Meet a salary basis test, meaning that they are given a fixed salary every week regardless of the amount of work that is done. Under the FLSA, the minimum salary that can qualify is $455 a week.
- Have primary duties which include office or non-manual work that relates to general business operations.
- Be expected to use discretion and independent judgment.
Do I Qualify As An Executive?
In addition to having to pass the salary basis test, an executive can be identified under the FLSA by:
- Managing two or more other employees.
- Delegating tasks.
- Setting the hours other employees work or managing their pay.
- Interviewing and training employees.
- Creating budgets.
Those who are classified as an executive can manage just a single shift, several departments, or the entire company.
I Should Be Nonexempt – Why Is My Employer Failing To Pay Me Overtime?
No employer wants to pay an employee more than they have to, which is why many have found ways to avoid paying their employees overtime, including:
Misclassifying An Employee
Common violations that fall under misclassification include:
- Calling an employee a manager even though they have the same duties as the employees they supposedly are supervising.
- Indicating that an employee falls under white collar exemption – even though their role doesn’t require discretion and independent judgment.
Incorrectly Counting Hours Worked
It’s no secret that in the U.S., employees are frequently pressured to work longer and harder hours so that their employers can save time and money. But often, these additional hours are improperly calculated by:
- Saying the work was done “off the clock” and that the employee hadn’t clocked in for the day.
- Not including the time they spent working through a break or lunchtime.
- Not including time spent traveling for work.
- Not including time spent doing extra work at home.
Failing To Properly Calculate The Wage
Even though most employees understand that overtime should be 1 ½ times their regular rate of pay, they don’t realize that the regular rate could also include:
- Shift differentials or commissions.
- Performance based bonuses.
The bottom line is that if you believe that you are owed overtime pay, there are steps you can take to recover the lost wages.
Steps To Take If You Believe You Are Owed Overtime
The first thing that anyone should do if they believe that their employer owes them overtime is to speak with their employer. It’s quite possible that the employer doesn’t realize that a mistake has been made and it may be possible to resolve the issue on your own.
If this fails, then it’s time to contact an attorney. An attorney can help by assisting the employee with filing a lawsuit. A lawsuit may provide the plaintiff with:
- Their unpaid wages.
- Attorneys fees
Although this may seem like an extreme step, it may be the only way to obtain the wages that are owed.
I’m Afraid My Employer Will Fire Me If I Seek Unpaid Overtime
Understandably, the fear of losing their job and only source of income is enough to prevent them from even consulting an attorney about their legal rights. But it’s important to remember that the Occupational Safety & Health Administration has programs called “Whistleblower Protections” which are laws which state that an employer cannot retaliate if an employee reports that protected rights are being violated.