New York Overtime Lawyer & FLSA Overtime FAQs

If you believe your employer has failed to pay you properly for overtime or other wages, you may have rights under the Fair Labor Standards Act (FLSA) and applicable New York wage-and-hour laws.

The FLSA generally requires covered, nonexempt employees to receive overtime pay at one and one-half times their regular rate for hours worked over 40 in a workweek. New York law may provide additional protections and remedies.

What Is FLSA Overtime?

FLSA overtime is additional compensation generally required when a covered, nonexempt employee works more than 40 hours in a workweek.

Overtime is generally calculated at 1.5 times the employee’s regular rate of pay. The regular rate may include certain compensation beyond an employee’s stated hourly wage.

Who Is Entitled to Overtime Pay?

Many employees are entitled to overtime, but exemptions can apply. Whether you are entitled to overtime may depend on:

Your actual job duties
How you are paid
Hours actually worked
Your employer and industry
Whether an overtime exemption applies
Whether New York law provides additional protection

Your job title alone does not determine whether you are exempt from overtime.

Do Salaried Employees Get Overtime?

Potentially, yes. Being paid a salary does not automatically make an employee exempt from overtime. Certain exemptions require specific compensation and job-duty requirements to be satisfied.

Can My Employer Refuse to Pay Overtime Because I Did Not Get Permission?

Generally, an employer cannot avoid its overtime obligations simply because employees were required to obtain advance approval.

If an employer allows or requires a covered employee to work compensable overtime, the employee may still be entitled to overtime even if company policy prohibits unauthorized overtime.

Can My Employer Require Me to Work Off the Clock?

Covered employees generally must be paid for compensable work they are required or permitted to perform.

Off-the-clock work can include:

Working before clocking in or after clocking out
Answering work emails from home
Performing work during an unpaid meal period
Completing paperwork outside scheduled hours
Performing work remotely without recording all hours

Whether particular time is compensable depends on the circumstances.

What Are Common Overtime Violations?

Common unpaid overtime and wage-and-hour violations may include:

Failure to pay time-and-a-half
Off-the-clock work
Failure to record all hours worked
Misclassification as exempt
Misclassification as an independent contractor
Improper overtime calculations
Unpaid work before or after scheduled shifts
Improper deductions from wages

Can My Employer Call Me an Independent Contractor to Avoid Paying Overtime?

Not necessarily.

Whether a worker is an employee or independent contractor under the FLSA depends on the actual economic relationship between the parties, not simply the label used by the employer.

A worker improperly classified as an independent contractor may potentially have claims for unpaid overtime and other wages.

Can My Employer Call Me a Manager So I Am Exempt From Overtime?

Not necessarily.

Calling an employee a manager, administrator, professional, or another title does not automatically eliminate overtime rights. The employee’s actual duties and compensation must be evaluated under the applicable exemption requirements.

How Is Overtime Pay Calculated?

For a typical covered, nonexempt hourly employee, overtime is generally paid at 1.5 times the regular rate for hours over 40 in a workweek.

Calculations can become more complicated when an employee receives salary, commissions, bonuses, piece-rate compensation, multiple rates of pay, or other compensation.

Can Bonuses or Commissions Affect My Overtime Rate?

Yes, potentially. Certain bonuses, commissions, and other compensation may need to be included when determining the employee’s regular rate for overtime purposes.

Can I Recover Unpaid Overtime?

Potentially. Depending on the circumstances, an employee may be able to recover unpaid overtime, liquidated damages, attorney’s fees, and litigation costs, along with other available relief.

The potential recovery depends on the applicable law, hours worked, compensation, evidence, and other circumstances.

What Is the New York Overtime Law?

New York employees may have rights under both the FLSA and New York Labor Law.

New York generally requires covered employees to receive overtime at 1.5 times the regular rate for hours worked over 40 in a workweek, although certain industries and employees may be subject to different rules.

Because federal and New York overtime laws are not identical, an overtime claim should be evaluated under both federal and state law when applicable.

What If My Employer Retaliates Because I Complained About Unpaid Overtime?

Employees may be protected from retaliation for exercising rights protected by the FLSA and applicable New York law.

Retaliation may include:

Termination
Demotion
Discipline
Reduced hours
Threats
Other adverse treatment

If you were retaliated against after complaining about unpaid overtime or wage violations, you may have a separate retaliation claim.

What Evidence Can Help Prove an Overtime Claim?

Potentially important evidence includes:

Pay stubs
Time records
Work schedules
Emails and text messages
Workplace communications
Employment agreements
Company policies
Personal records of hours worked
Evidence of off-the-clock work
Documents concerning classification and compensation

Preserve evidence lawfully and do not improperly take confidential company information.

How Long Do I Have to Bring an FLSA Overtime Claim?

FLSA claims are subject to statutory limitations periods. The applicable period can depend on the circumstances, including whether the violation was willful.

New York wage claims can involve different limitations periods and procedures. Because deadlines can affect your ability to recover unpaid wages, potential claims should be evaluated promptly.

Can I Have Both an FLSA and New York Overtime Claim?

Potentially, yes. The same conduct may violate both federal and New York wage-and-hour laws. The applicable laws, deadlines, damages, and procedures should be evaluated together.

What Should I Do If I Believe I Am Owed Overtime?

Keep an accurate record of the hours you actually worked and preserve relevant pay records, schedules, time records, emails, text messages, and evidence of off-the-clock work.

Do not assume your employer’s time records are complete or accurate.

A New York overtime lawyer can review your job classification, compensation, hours worked, employer practices, potential damages, and applicable deadlines.