The Fair Labor Standards Act (FLSA) is a federal law that provides requirements regarding pay for overtime work. In most instances, when an employer allows or requires an employee to work overtime, the employer is required to pay that employee for their overtime work.
An employee who is covered under the FLSA is required to receive overtime pay for any hours they work in excess of 40 hours in a workweek. The FLSA does not require employers to pay overtime pay for hours that are worked on weekends or holidays only because the work is done on weekends or holidays. What triggers the need to pay overtime is that a worker puts in hours in excess of 40 hours in a workweek.
Workers in some occupations are exempt from overtime under the federal FLSA but are still entitled to overtime under the New York labor laws. While these workers must be paid overtime, New York’s labor laws require the same overtime rate as the FLSA, i.e., 1 1⁄2 times the New York minimum wage for overtime hours for all regular rates of pay.
The minimum wage is $15.00 in New York and $16.00 per hour in New York City, Long Island, and Westchester County.
Wage and hour claims under New York labor laws would be submitted to the New York State Department of Labor. A local New York lawyer would be able to help an employee make a claim if they believe that they have been denied the overtime pay they are due under New York labor laws.
The FLSA does not place any limit on the number of hours an employee may work in a workweek. The hours in a workweek may be different for certain employees or groups of employees.
Per New York labor laws, there are also no limits on the number of hours a person may have to work in a day except for children under the age of 18. However, New York law does require that certain workers be guaranteed 24 hours of rest each calendar week. The occupations to which this requirement applies are the following:
- Factory workers;
- Workers in mercantile businesses;
- Hotel workers;
- Restaurant workers;
- Elevator operators;
- Watchmen;
- Janitors;
- Superintendents;
- Farm laborers.
Employers may not require that employees seek some kind of advanced authorization for any overtime work. Employers are prohibited from refusing to pay for work that has been completed as overtime if the hour requirements are met, and the employee is one who is not exempt from overtime pay laws.
An employee has the right to be compensated for all of the hours they have worked. Overtime pay must be calculated based on the average hourly rate, which is derived from the earnings during the workweek.
Earnings may be based on:
- A salary;
- A commission;
- A piece-rate.
Who Is Exempt From Overtime Pay Mandates?
If an employer falls under the FLSA or the New York overtime laws, all of their employees are entitled to overtime pay unless an exemption applies. Following is a list of workers who are exempt, i.e., employers are not required to pay them overtime.
- White collar employees who are paid a salary, including:
- Executives;
- Administrative professionals;
- Professionals;
- Independent contractors;
- Volunteer workers;
- Outside sales personnel;
- Certain computer specialists;
- Workers of amusement parks and county fairs;
- Employees of organized camps or religious conference centers;
- Employees of certain small newspapers;
- Newspaper deliverers;
- Workers in fishing operations;
- Babysitters; and
- Criminal investigators.
There are special New York rules regarding overtime pay for farm employees that change annually.
What Are Overtime Pay Laws in New York?
As noted above, New York state has its own overtime pay requirements that impose the same obligation with respect to basic overtime as those imposed by the FLSA. An employer is required to pay the majority of employees entitled to overtime at a rate of 1.5 times their regular rate of pay for all hours worked over 40 hours in a workweek.
As previously noted, there are certain occupations that are exempt from the overtime requirements of the FLSA. However, some workers in these occupations are still entitled to overtime pursuant to the laws in New York state.
What Are Some of the Differences in Overtime Pay Requirements?
Pursuant to New York labor laws, a residential employee is defined as an employee who resides in the home of their employer. There are certain residential employees who are required to receive overtime pay, which is at a rate of 1.5 times their regular rate of pay for all hours that are worked over 44 hours in a work week.
In addition, there is a different overtime pay requirement for workers in certain occupations who are exempt from overtime requirements under the FLSA but not under New York state laws. Workers who are in these occupations are required to be paid an overtime rate, which is 1.5 times the New York minimum wage, regardless of the amount of their regular rate of pay.
In addition, employment agreements or contracts may allow for a higher amount of overtime pay than those that New York and federal law require. The following LegalMatch articles can provide more information:
What Occupations Are Exempt From Overtime Pay Requirements?
There are certain occupations that are exempt from both the overtime provisions of New York law and the FLSA requirements, also as follows:
- Executive, administrative, and professional employees;
- Individuals working for the government, whether:
- Municipal;
- State;
- Federal;
- Outside salespeople;
- Certain volunteers, interns, and apprentices;
- Taxicab drivers; or
- Individuals working for:
- A fraternity;
- A sorority;
- A student-faculty association.
Who Is Covered by the Overtime Requirements?
New York state overtime laws apply to any person who is defined as an employee. An employee is “any individual employed or permitted to work by an employer in any occupation” other than the occupations that are specifically exempt from overtime laws, as noted above.
As noted above, New York state overtime laws do not cover local, state, and federal government employers. However, they do apply to:
- Charter schools;
- Private schools;
- Not-for-profit corporations; and
- Non-teachers who work for school districts.
What Is a Regular Rate of Pay?
The regular rate of pay for an employee is the amount that the employee is paid regularly for each hour of work. The regular rate of pay cannot be less than the minimum wage, and employees are required to be paid at a rate of 1.5 times their regular rate of pay for all of the overtime hours they work.
Certain payments are not part of the regular rate, including:
- Pay for expenses that were incurred on the employer’s behalf;
- Premium payments for overtime work;
- Discretionary bonuses;
- Payments made as gifts; or
- Payments for occasional periods when the worker does not perform any work.
What About for Holiday, Weekend or Night Work or for Longer Than Usual Workdays?
New York labor laws do not require overtime pay for:
- Holiday work;
- Weekend work;
- Night work.
There may, however, be individual employment agreements or collective bargaining agreements that require increased or additional pay for holiday, weekend, or night work. In these cases, the agreements would be enforceable under New York state labor laws.
In addition, employees are not required to be paid overtime simply because their employer asks them to work more hours in a day than they usually work. This is because overtime is calculated based on the number of hours worked on a weekly basis.
Can the Right to Overtime Pay Be Waived?
An employee is not permitted to waive their right to overtime pay. For example, an employee may attempt to reach an agreement with their employer to count only 8 hours a day or only 40 hours a week as their working time. In that case, this will be considered an illegal attempt to avoid the overtime pay requirements that are mandated by law.
In addition, an employer might announce that overtime work will not be permitted or that overtime work will only be paid when it is authorized in advance. If so, the employer is still obligated to pay overtime to workers for the hours that they have already worked.
Are There Any Defenses to Overtime Violations?
Yes, there may be some available defenses to an overtime violation. One of the more common defenses presented by employers is that the employee is exempt from overtime pay requirements as provided by the FLSA.
However, even if the employee is exempt, they may be able to recover on a breach of contract claim if overtime pay is a requirement pursuant to the policies of the company. Another defense that may be available is the good faith defense.
If an employer was honestly unaware that the affected employee was due overtime pay or was not exempt from overtime pay, they may be forgiven for their ignorance. In the future, though, the employer would be required to pay overtime wages correctly and when they are due.
Should I Contact a Lawyer for Help With My Overtime Issue?
You might be legally entitled to receive overtime pay and may not be receiving it in the state of New York. If that is the case, you can file a complaint with the Labor Standards Division of the New York State Department of Labor or the New York Attorney General’s Labor Bureau.
It may also be helpful to consult with a New York employment attorney who can assist you with your complaint as well as with filing a complaint in court if that should be necessary.
