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Unpaid Wages and Overtime

The federal Fair Labor Standards Act (FLSA) and the New York State Labor Law (NYLL), set requirements for employers to pay minimum wage and overtime to employees. Unfortunately, all too often, employers do not pay employees properly, a practice that has come to be known as wage theft.  Today’s employment law blog discusses issues relating to unpaid wages and overtime.

Minimum Wage

Minimum wage is set by both the FLSA and NYLL.  Generally, New York’s minimum wage is higher than the federal minimum wage, so in New York employers must comply with New York’s law.  New York’s minimum wage varies depending on industry and location.  Further, it is set to increase over the next several years.  Accordingly, employees in New York should watch the Department of Labor website to stay up to date on the latest minimum wage or contact a lawyer to determine if the employer is paying the proper minimum wage amount.

Oftentimes, employers find trouble with tipped employees.  Sometimes employers use improper calculations to determine how much of an employee’s tips can be used towards the minimum wage, called the tip credit.  Other times, employers require tipped employees to share tips with non-tipped employees, such as managers or back of the house employees like cooks.  Still other times, employers do not pay employees tips which were collected from the customer by the business, such as mandatory gratuity charges or service charges for catered events.


Both the FLSA and the NYLL require employers to pay overtime to employees for every hour the employee works over 40 hours, unless the employee is exempt by law from overtime.  Overtime must be paid at 1.5 times the regular rate of pay.  Exemptions include the administrative and executive exemptions.  The determination of whether an exemption applies can be a complicated inquiry.  If an employer is claiming an employee is exempt from overtime, the employee should consult with a lawyer to determine whether the employer made an appropriate determination.

Wage Notices

Because of the prevalence of wage theft, New York’s Wage Theft Prevention Act (WTPA) requires employers to furnish employees with wage notices upon hire and at each pay period.  The notice must state, among other things, the hours worked, the regular rate of pay and overtime rate of pay, and the employer’s contact information.


The Department of Labor, as well as Courts, take wage theft very seriously.  In addition to obtaining the unpaid wages, enforcement proceedings can impose liquidated damages against employers up to 100% of the actual damages.  Violations of the WTPA may result in statutorily imposed damages.  Further, employers can be liable for an employee’s attorney’s fees.  In sum, FLSA and NYLL violations can result in significant damages against an employer.  Employees who believe they have not been paid proper minimum wage or overtime should consult with an employment lawyer to review their options.

If you have further questions about unpaid minimum wage or overtime or if you believe you have not been paid properly, contact the employment lawyers on Long Island of Famighetti & Weinick, PLLC at 631-352-0050.  On the internet, we are available at our website or on Facebook.

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