YOUR RIGHT TO OVERTIME PAY IN NEW YORK - A GUIDE BY OUR NY LAWYER

The New York overtime pay laws are similar to the federal overtime laws under the Fair Labor Stadards Act (FSLA).  Under these overtime pay rules, it is assumed that every employee is entitled to overtime pay unless they fall within one of the exemptions.

 

Under New York's overtime pay law, all non-exempt employees must be paid a premium for each hour worked over 40 in a work week.   The premium rate for overtime hours is time and half.   For example, if an employee who normally earns $20 per hour works 44 hours is a work week - that employee must be paid $30 per hour for those extra four hours over 40 hours.

 

As mentioned above, the New York overtime pay laws exempt certain jobs from the overtime pay requirement.  People who work in the following types of jobs are probably not entitled to overtime pay in New York:

 

EXEMPTIONS FROM NEW YORK'S OVERTIME PAY RULES

 

Commissioned sales employees -  retail or service employees are exempt from overtime if more than half of their earnings come from commissions and they average at least one and one-half times the minimum wage for each hour worked.

 

High Level/Creative Computer Professionals - high level computer professionals who are paid more than $27.63 per hour are exempt from overtime under the Fairl Labor Standards Act and therefore under the New York overtime laws.  This exemption only covers high level employees who design or create computer sytems or who work without close supervisoin and regularly exercise discretion in the performance of their duties.   Routine computer or technology workers such as help desk, maintenance, repair or coding employees are entitled to overtime pay.

 

Outside salespeople - employees who spend the majority of their time out of the office engaged in the sale of goods or services are exempt for the New York and federal overtime pay rule.

 

Executive, Adminstrative and Professional employees - this broad exemption covers executives or managers, high level adminstrative employees who regularly exercise substantial discretion and professoinals (those with advanced degrees) and they are generally exempt from the New York and federal overtime pay rules.  These exemptions are open to interpretaion and their scope is often the subject of legal disputes.  Many companies give employees fake labels to make them appear to fit into one of these exemptions.  

 

 

--Overtime Pay Information

-HIGH TECH WORKERS

 

OVERTIME PAY FAQ

 

When is overtime pay due?

Overtime pay  is due whenever an employee works form that 40 hours in a workweek or 8 hours in a day.   The 8 hour day rule only applies in California.  The overtime pay rate provides you with a 50% increase in your normal pay rate.  

 

How are vacation pay, sick pay and holiday pay calculated? 

Vacation, sick, and holiday pay are not regulated by federal law.  Typically payment for sick time, vacation and holidays are up to the employer.  

 

Am I entitled to extra pay for weekend or night work? 

No, there is no law requring extra pay for weekend or night work.  But, your employer can agree to pay you extra for such work.   Also, the overtime pay rules apply and if this extra work causes you to work more than 40 hours in a work week, then you are entitled to overtime pay at a 50% pay increase.   

 

When am I entitled to a raise?

The law does not require a pay raise.   Pay raises must be agreed upon by the employer.   The best way to get a raise is to go ask for one.   But there is no legal requirment that your pay be increased overtime.  

 

What if my employer changes my job duties, can they do that?  

Yes, your employer can change your duties.   There is no law that restricts the scope of your work.  You need to do what your employer asks you to do.   If you do not like it, you should discuss it with your employer and if you are not satisfiesd, you are free to find another job. 

 

My employer has classified me as an independent contractor and refuses to pay me overtime pay.  . Am I entitled to overtime pay?

First you need to determine if you are truly an independent contractor.  A genuine indepedent contractor is someone who works for more than one company, controls their own work schedule and even uses their own equipment on the job.  An employee, on the other hand, only works for one company and their work schedule and tasks are controlled by the employer and the employer provides the work place and equipment.   Generally, if you go to work for the same company each day and work a full day each day then you are an employee and not an independent contractor.  Employees are entitled to overtime pay, but genuine independent contractors are not entitled to overtime pay.   

 

If I am paid a salary, am I entitled to overtime pay?  

Yes, even salaried employees are due overtime pay.  It is a common misconception that only hourly workers get overtime pay.   Do not fall for that.   Salaried employees are entitled to overtime pay.   There are exceptions to the overtime rules and these include outside commissioned sales employees, executives, certain high level administrators, professionals such as doctors and lawyers, and truck drivers.   

 

Do I need my time records to prove an overtime case? 

No, if your employer does not keep track of your time, then you are allowed to estimate your time and that will usually hold up.  

 

Do I need to get permission to work overtime? 

No, approval is not required.   If you worked overtime, you are entitled to overtime pay. 

 

Can my employer force me to take comp time in lieu of overtime pay? 

No, comp time cannot be substituted for overtime pay.   If you work overtime, you must be paid at your overtime rate.  

 

What is a workweek?  

A workweek is any period of seven consecutive days.   

 

For more information on overtime pay, please call A NY attorney at 866-571-5010.