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.