Who Is Owed Overtime? - October 2020

In New York, unless exempt, any employee who is working overtime must be paid at one and one-half times their normal hourly rate for those hours. Overtime is considered any hours worked over 40 hours during a payroll week. It is not hours worked over 8 hours in one specific day. So, working on the weekend, or working one very long day, does not automatically put you in line for overtime. However, employees need to have a clear understanding of whether they are entitled to overtime, when they should expect the overtime pay, and what to do if their employer fails to pay them appropriately.

Exempt Employees

New York overtime exclusions follow the U.S. Fair Labor Standards Act (FLSA), though New York has implemented a higher base salary that individuals must be paid to be exempt than what is codified in the FLSA. Administrative, professional, computer professional, outside sales, and executive employees are exempt when they are paid more than the minimum salary of $684 per week (as per the FLSA) but in parts of New York, this minimum amount is raised to $1,125 per week.

Calculating Overtime and Payment

In order to calculate overtime, you need to know your hourly wage. Overtime is one and one-half of your hourly wage. For salaried-workers who are entitled to overtime, your employer should be able to help you calculate what your hourly rate is based on a 40-hour workweek. This calculation can get complicated if you work fluctuating hours or are paid a salary, but are not exempt.

Permission to Work Overtime

Many employers try to prevent overtime pay by putting in place a policy against paying overtime. However, this by itself is not enough to keep them from owing overtime if the overtime has been worked. If an employer asks you to work extra time, or you have to work that time to complete a project, then the employer is required to pay you for your time. While, it is within an employer’s power to put in place a policy restricting overtime, or requiring pre-approval for overtime, if you nevertheless work overtime hours, even if you fail to ask permission it may still owe you for your time. But note, that working overtime without prior permission or when overtime is not allowed may be grounds for a write-up or dismissal.

What to Do if Your Employer Fails to Pay

If your employer fails to pay you overtime owed, or if it tries and make a different arrangement with you to cover overtime hours, you may need to contact an attorney, especially if your employer is making you feel like you have to work those overtime hours “for free” to keep your job.

The team at Phillips & Associates has helped many employees recover unpaid wages and overtime hours. We are a big firm that defends employees, including those who have been sexually harassed, so you won't be outgunned by the big firm your old employer hires to defend themselves. For a free consultation, call the experienced New York discrimination and wrongful termination attorneys at Phillips & Associates today at (866) 229-9441.

At Phillips & Associates - We Level the Playing Field

Employees were, and for the most part still are, at a big disadvantage in the workplace. There is a dramatic power imbalance between employees and the companies for which they work. This power balance can intensify after experiencing sexual harassment or discrimination. The company/employer often hires a large law firm to represent it, while the employee may have just lost their job, have very little money, and have no one to help them understand their rights. At Phillips & Associates, we have the experience, staffing, and financial backing to keep the playing field level. People need to take a close look at the lawyer or law firm they want to hire and determine if that lawyer or firm has the funds, experience and the resources to properly litigate their case.

Phillips & Associates, one of the largest plaintiffs' only employment law firms in New York. The firm handles cases involving sexual harassment and discrimination in the workplace including pregnancy, race, disability, religion, gender, and sexual orientation, and other protected traits. Phillips & Associates also handles other areas of harassment at work such as retaliation and wrongful termination. Most recently Phillips & Associates was selected as one of the "10 Best Employment & Labor Law Firms" in New York" by the American Institute of Legal Counsel.

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