How Do I Know If I’m Entitled To Overtime Pay In New York?

If you are a nonexempt employee covered under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), your employer must typically compensate you at the overtime rate of 1 ½ times your regular pay rate when you work more than 40 hours per week.

Employers do not need to pay OT to certain “exempt” workers who meet specific criteria related to their salary, employee classification, and job duties.

Employers often fail to compensate eligible workers for their overtime worked.

Am I Automatically Exempt From OT If I’m Salaried?

No. In most cases, hourly workers are automatically considered nonexempt and eligible for overtime. However, salaried employees can be eligible for overtime as well. Employers do not have the final say on who is or isn’t eligible for overtime pay. Employers must comply with strict state and federal standards. One component to determine whether an employee is exempt or not is a tiered salary threshold. Beginning in 2020, the U.S. Department of Labor ruled that employees earning less than $35,568 per year are entitled to overtime pay. However, New York State set that threshold much higher beginning in 2021. According to the NYLL, exempt status only potentially applies to those making an annual salary of at least:

• $58,500: New York City
• $54,600: Nassau, Suffolk and Westchester counties
• $48,750: The rest of the state

Which Workers May Be Exempt? 

Examples of employees who may be exempt from overtime wages include:

• “Highly paid” workers – those earning above the state’s salary threshold
• Certain government workers
• Some computer employees
• Outside salespersons
• Taxicab drivers
• Employees meeting the criteria for the executive, administrative or professional exemptions

For specific exempt categories, a complete list can be found at the New York State Department of Labor’s website. 

What Other Factors Determine Exempt Status? 

Overtime eligibility is not determined solely by a person’s pay rate. It is also dependent upon their employment classification and job duties. Employers often wrongly classify employees as exempt. The following three issues of misclassification often arise: 

1. Incorrectly labeled independent contractors: Independent contractors are not eligible for overtime wages. However, you must have a certain amount of independence to be correctly classified as an independent contractor. Common factors which suggest that you are an employee include:

• You are required to work out of an office.
• The business sets your work hours.
• You must wear a uniform.
• The employer requires you to follow specific procedures.
• The employer is the only source of your income.

If your employer enforces any of these requirements, you may be misclassified as an independent contractor. If you work more than 40 hours per week, you may be entitled to overtime wages.

1. Job titles do not match day-to-day work duties: Determining whether you are exempt is highly dependent on your job duties, not just your title. For example, at first glance, an administrative assistant may seem to meet the “administration exemption” criteria under the FLSA. However, just because “administrative” is in the job title does not mean the work involves making administrative decisions on matters of significance for the business, which is a requirement to meet this exemption.
2. Failing to pay overtime wages to nonexempt employees: As mentioned previously, being salaried does not in and of itself mean you are exempt from OT. Some employers purposely create salaried positions or misclassify workers to avoid paying overtime, while others are uneducated about federal and state labor laws.

Bottom Line. Who Qualifies For Overtime? 

You may be entitled to receive overtime pay under New York Labor Law if:

• You are paid hourly.
• You earn less than the state’s salary threshold.
• You work more than 40 hours per week.
• You are not part of an exempt category of employees.
• You are incorrectly classified as an independent contractor.
• Your job duties do not meet the requirements for exempt status.

How Can An Experienced Wage And Hour Attorney Help?

Eligibility requirements can be complex, so if you feel you are wrongly classified as exempt from overtime wages, reach out for knowledgeable legal guidance as soon as possible to ensure that your rights are protected. It is a challenging area of the law to navigate alone.   

All cases are different despite common employer violations. In order to increase your chances of recovering unpaid wages, your first step should be to contact a highly skilled employment attorney for a free, confidential consultation.