You Worked for It – Now Get Paid for It
All too often, New York employers abuse wage and hour regulations to save money and cut corners. Wage and hour violations occur across industries throughout New York City and the state of New York. It does not necessarily only affect the City, or service industries like employees working in nail salons, restaurants, and construction sites – it affects all industries! For instance, even hard-working individuals working in banking, IT, healthcare, and others.
Like federal wage and hour laws, the State of New York’s overtime provisions effectively tracks the federal provisions. For instance, employers—like yours—must pay employees one-and-one-half times the employee’s regular rate of pay overtime. The time to bring a claim for unpaid wages under the Fair Labor Standards Act is only 2 years, and 6 years under the New York Labor Law.
Wage and hour claims are very complex due to the many exceptions and calculations under the law. Our attorneys have years of experience litigating claims of employment issues, discriminatory conduct, and wage and hour claims. Our attorneys work together as a team and we have recovered millions on behalf of our clients who were cheated out of the money they earned and for individuals discriminated against at the workplace. If you feel like your employer is not following the law or that you have been discriminated against, please call us today at (212) 587-0760 or contact our employment attorneys online by filling out the contact form. We offer free consultations and would love to see how we can help you.
Are you a company employee but being misclassified as an independent contractor or being paid completely off the books?
If so, your employer is avoiding compliance with a number of laws regarding:
- Unemployment insurance
- Workers compensation
- Social Security
- Tax withholding
- Temporary disability
- Minimum wage and overtime laws that protect workers
If your employer is not complying with these laws it hurts you, the employee, as you will not be able to reap the benefits of the above. One example: Being misclassified as an independent contractor will deprive you of your proper social security benefits since your employer has not documented you as an employee of the company, meaning you are not contributing to social security through your payroll deductions. The end result is less money in your monthly social security check at retirement.
Has your employer unlawfully deducted money from your paycheck?
If you are in the service industry (example bartender/waiter/waitress), your employer is prohibited under the FLSA and the NYLL from making illegal deductions from your wages. Taking money for house fees can be an example of wrongdoing by your employer. Your employer is also prohibited from demanding, retaining, or receiving portions of the tips you have earned.
In general industries as well, your employer is not permitted to make any unlawful deductions from your paycheck for various reasons including:
- Arriving for work late
- Breaking or spoiling company property
- Any cash shortage or losses of money
- Errors on checks or unpaid checks
- You as an employee quitting without notice
- Your conduct at work
Is a fellow employee of yours not properly providing your tips to you?
In addition to your employer not being permitted to retain or demand a portion of your tips, you are not required to share your tips with other employees that have no customer service duties.
Are you being paid below the minimum wage?
FLSA requires your employer to pay you at least the statutory minimum wage (in New York State it is now $15 per hour – effective as of December 31, 2018). If you are a tipped employee, you would be paid at a reduced amount but it’s important that your employer explains the “tip credit”. For example, your employer must explain to you and your fellow employees that your tips will be credited against the minimum wage. This must be documented in writing and shown to you, the employee upon acceptance of employment. Your employer is not allowed to unjustly miscalculate the tip credit.
Are you a dual-job employee within your company?
Example: Are you both a “tipped” and “non-tipped” employee at a restaurant?
If so, your employer is only permitted to take advantage of the tip credit for the hours you have worked in the tipped occupation. If you as the employee have worked in a “non-tipped” function for two hours or more (or more than twenty percent of your shift), there should be no tip credit applied by your employer.
Were you not completely paid for the overtime you worked?
In accordance with The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL), if you are a non-exempt employee and have worked more than forty hours in a work week you are entitled to a 1.5% rate of compensation (that is called “time-and-a-half”) for the hours worked beyond forty hours. If your employer is failing to pay you your earned overtime wages, it is unlawful. The New York State Minimum Wage Orders contain the State’s overtime requirements. These requirements are in addition to those required by federal law, including the FLSA. Your employer can only avoid paying overtime wages if you are an exempt employee.
Do you know what being an exempt employee means? To help you understand, we list it here, and you would have to meet all of the requirements:
In order to qualify as an exempt employee, your primary duty would be the management of your company or one of its departments, and you would have to direct the work of at least two employees. Also, you would have to be in a position of authority to regularly suggest the hiring and firing of employees, as well as customarily and regularly exercise discretionary powers. You would have to be paid on a salary basis (not less than $675 per week), and not paid hourly. If your job does not meet the above criteria, you are not an exempt employee, and therefore should be getting paid overtime wages as you would qualify for it.
Are you a tipped employee receiving overtime pay?
Here is something you should know if you are a tipped employee regarding your overtime rate: A common violation by restaurants is miscalculating tipped employees’ overtime pay rate. The restaurant owner must use the full minimum wage rate, multiply by 1.5% of that hourly wage, and THEN deduct the tip credit. If this is not being handled properly, your employer is breaking the law.
Are you asked to perform off-the-clock work or overtime and not being properly compensated?
Time working before the normal shift begins is considered “off the clock” work. If your employer requires that you come in earlier than your normal start time, you as an employee must be compensated for this.
Are you working two shifts spread over ten hours or more and not being compensated properly?
Know your rights in that you should be paid one extra hour’s compensation at minimum wage (in addition to any overtime money) if you work multiple shifts spread over ten hours or more (from the start of work hour to end of work hour including any intervals). This is called “spread of hours”.
Were you not provided an accurate wage statement (pay stub) from your employer?
It is your employer’s responsibility to record all of the time/hours that you have worked and to keep the time and pay records in an accurate manner. It is your right as an employee to receive a pay statement from your employer. The statement must include your hours worked, the rate paid, gross and net wages, deductions and allowances claimed. Your employer’s name, address and phone number must appear as well as the period for which you are being paid.
Did your company not pay you properly if you found out last minute that you were not needed for work that day?
There are laws specific to “call-in” pay that protects you as a worker. Your employer is legally bound to pay you for four hours or that of a normal shift (whichever is less).
Are you entitled to compensatory or liquidated damages if you are involved in a lawsuit with your employer?
If you have been fired and will enter into a lawsuit with your employer, you may be entitled to compensatory or liquidated damages. This is money that can be recovered in addition to the actual damages amount. It would represent the lost earnings during the period of not working due to your employer’s violation (prompting the need for your lawsuit). It will need to be proportionate to your actual economic loss. It can also be based on an agreement you may have with your employer as to a dollar figure should your employment contract have been breached. In some cases, whatever you’re owed is doubled.
Are you familiar with the New York Equal Pay Acts?
This prohibits sex discrimination in compensation for jobs in the same establishment that require equal effort, skill, and responsibility, and that are performed under similar working conditions. This Law applies to all employers, and size is not taken into account.
There can be differences in the rate of pay, and it is important for you to know when this could take place:
- A merit system
- A seniority system
- A system where quality or quantity of production is a taken into account
It is very crucial to know what exactly is going on at your job because there can be times where things may seem unfair or wrong, but your employer might be well within his/her rights. However, there is no hiding the fact that all across America if a study was done regarding pay for men and women, men would be making more money in most companies. Being that many years ago men were stereotypically seen as the breadwinners of the family, it took some time for women to be given that same respect, and be treated how they should be. However, there is absolutely no reason why men should be given any advantage at all. Companies will sometimes offer men under the table, or non-reported bonuses with the hopes that the women in the company will not find out.
Who is not covered under New York State wage and hour law?
Unfortunately, the law does not cover employees working in all fields of work. For instance, minimum wage and overtime law does not apply to the following workers:
- Persons working as companions for sick or elderly individuals
- Workers in a bona fide executive, administrative, or professional capacity
- Outside salespersons
- Taxi drivers
- Volunteers or apprentices for charitable, religious, or educational organizations
- Members of religious orders (such as priests, monks, or rabbis)
- Students and handicapped individuals working for religious or charitable organizations
- Employees of a summer camp operated by a religious or charitable organization operating less than three months each year
- Staff counselors in children’s camps
- Employees of student or faculty associations or fraternities
- Employees of federal, state, or municipal governments or their subdivisions
- Volunteers at recreational or amusement events that run 8 days or less