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Overtime Pay in New York

The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) require that most employees receive overtime pay for all hours worked over 40 in a workweek.  Overtime pay is one and one half times the regular rate of pay.  Famighetti & Weinick PLLC are employment lawyers in New York and handle many of the issues discussed below relating to overtime pay in New York.

Who is Entitled to Overtime Pay in New York?

Only employees may be entitled to overtime pay.  In other words, independent contractors are not employees and are, therefore, not entitled to overtime pay.  Employers, however, frequently misclassify workers as independent contractors.  Simply paying an employee “on a 1099” is not the end of the inquiry as to whether a worker is an independent contractor.  As a matter of fact, being paid on a 1099 is probably the least important factor.  Rather, courts will look at the level of control that the employer has over the worker, the worker’s ability to set work hours and pay, who supplies the tools and equipment, and the permanency of the work.  The more control it appears that the employer has over the worker, the more likely it is that the worker is an employee and not an independent contractor.

Once it is determined that the worker is an employee, the FLSA and NYLL separate employees into two categories — exempt and non-exempt.  Exempt employees must meet a series of legal tests to determine whether they are exempt from the overtime requirements.  If the employee does not meet the tests, the employee is non-exempt and must be paid overtime.  The test for whether an employee is exempt is (1) is the employee paid the minimum salary set by the Department of Labor; (2) is the employee paid a salary and not hourly; and (3) are the employee’s primary job responsibilities those that that are considered.  The last requirement means that the employee’s job responsibilities must be executive, administrative, or professional. Courts will look at the employee’s actual job responsibilities, not just the title.  For example, simply calling an employee an administrative assistant does not mean that the employee meets the administrative job duties test.  The court will look at the employee’s day to day responsibilities to determine whether the administrative exemption applies.

What to do if an Employee Has Not Been Paid Overtime

Frequently, employers try to call workers independent contractors so they don’t have to pay overtime and minimum wage.  If the workers are not truly independent contractors, the employer will find itself in danger of a wage and hour lawsuit and/or penalties from the Department of Labor.  Not only are the wage and hour laws implicated, but these employers have not paid workers compensation and unemployment insurance for the misclassified employees and may face stiff penalties and fines from the Department of Labor.

Workers who have been misclassified or who were just not paid overtime by their employer may bring a wage and hour lawsuit against the employer in New York.  Waiters, waitresses, busboys, cooks, landscapers, and construction workers are frequently taken advantage of by employers who do not pay their employees properly. Because employers usually pay all of their employees  the same way, wage and hour lawsuits can typically be brought as class or collective actions, meaning all the “similarly situated employees” can be a part of the lawsuit.  Employees can obtain actual damages for the overtime owed by the employer, liquidated damages if the conduct was willful, and interest.  Further, employers may be required to the attorneys fees for the employee’s lawyer who brought the wage and hour lawsuit in New York.

Wage and Hour Lawyers in New York

Famighetti & Weinick PLLC are employment lawyers on Long Island.  Famighetti & Weinick handle wage and hour lawsuits in New York, including cases involving unpaid minimum wage and unpaid overtime.  The employment lawyers can be contacted at 631-351-0050 or on the internet at

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