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“Am I entitled to overtime pay when I’m paid a salary in New York?”

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Joseph A. Fitapelli - Employment Litigation - Super Lawyers

Answered by: Joseph A. Fitapelli

Located in New York, NYFitapelli & Schaffer, LLP

Phone: 212-300-0375
Fax: 212-481-1333

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Am I Entitled to Overtime Pay in New York?

An employer covered by Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”) must pay their eligible employees overtime pay. One of the factors that determine overtime eligibility is how the employee is paid. Employers may pay an employee an hourly rate, an annual salary, or some other agreed upon method (e.g., piecemeal, day rate). Regardless of the method of pay, the majority of employees are eligible for overtime pay in the amount of one and one-half times their regular hourly rate for all the hours worked over 40 in a workweek.

As an example, at this moment the New York State minimum wage rate ranges between $11.10 to $15.00 per hour, depending on location and size of an employer. In New York City, the minimum wage is $15.00 per hour for an employer with 11 or more employees. An employee who receives this $15.00 per hour minimum wage rate should receive $22.50 each hour they worked in excess of 40 per workweek. This is also true for employees who receive tips as part of their job (i.e., restaurant service employees). The New York State minimum wage rate for a tipped restaurant service employee is $10.00 per hour. This rate reflects the full minimum wage, minus a $5.00 per hour “tip-credit.”  For these employees, the overtime rate is $17.50 per hour, which represents 1.5 times the full minimum wage overtime rate ($22.50 per hour) minus the applicable “tip credit.”

Additionally, employees who are paid on a salary basis are still likely to be eligible to receive overtime pay. In order to avoid paying salaried employees overtime, the employer has the burden of proving that an exemption applies. However, many employers misclassify their employees as exempt from the overtime provisions of the FLSA and the NYLL in order to save money on labor costs. It’s important to understand that your job title (e.g., “vice president” or “assistant manager” or “operations manager”) or salary rate do not determine whether or not you are an exempt employee; your primary duties are the main factor.

Finally, the Department of Labor recently issued a provision increasing the salary requirement necessary to be eligible to receive overtime pay when working over 40 hours per week. It has increased from an annual salary of $23,660 to $35,308. This could affect over a million workers by becoming entitled to receive overtime pay when working over 40 hours in a work week regardless of being a salaried employee.  This area of law is very detail oriented and is evaluated on a case-by-case basis; therefore, if you are not being compensated for overtime you should consult an experienced employment attorney.

Potential Recovery

Eligible employees who were not compensated for overtime they worked are entitled to damages of one and one-half times their regular rate of pay for every hour worked in excess of 40 in a workweek and may also be entitled to interest, attorneys’ fees, and liquidated or double damages for the overtime violations. Even if you’re are a salaried employee, you may be entitled to overtime pay.

 Contact an Experienced Wage & Hour Attorney to Discuss the Details of Your Case

Joseph A. Fitapelli of Manhattan’s Fitapelli & Schaffer is an experienced and highly skilled employment attorney.  Mr. Fitapelli’s law firm has successfully represented New York employees recover unpaid wages

In New York, there is a six-year statute of limitations for most wage claims; therefore, if you feel you are entitled to overtime and are not being compensated, then please consult our experienced employment lawyers, to discuss your rights under the NYLL. Contact our knowledgeable lawyers today, for a free and confidential consultation.


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