What law regulates fair pay in the workplace? The Federal law that regulates fair pay in the workplace is called the Fair Labor Standards Act (“FLSA”). The FLSA protects employees from employers who violate overtime and minimum wage laws. New York and many other states have additional overtime and minimum wage laws as well. In general, where the federal and state wage laws have different requirements, employers are required to follow the rules more favorable to employees.
What is the minimum wage? Presently the minimum wage is $13.00 per hour in New York City for employers with 11 or more employees, or $10.50 per hour for employers with 10 or fewer employees. The minimum wage that employers located in Nassau, Suffolk, and Westchester counties must pay is $10 per hour. The minimum wage for the remainder of the state (outside NYC, Nassau, Suffolk, and Westchester) is currently $9.70 per hour. All of these rates are well above the federal minimum wage of $7.25 per hour. Each state may set its own minimum wage, but it must always be equal to or greater than the federal minimum wage. The minimum wage will continue to increase in New York faster than the federal rate. Indeed, New York’s minimum wage will continue to increase in each of the next few years until the minimum wage reaches $15 per hour in NYC and the surrounding counties by the beginning of 2022.
What is overtime? Generally, you must be paid “time and a half” your regular hourly rate for any time worked in excess of 40 hours in a workweek. In many instances, employers who pay some overtime fail to pay employees for all time worked. Even if you received some overtime pay, you may be entitled to additional money.
Am I “exempt” from overtime pay? This depends on the duties your job requires you to perform. Jobs that meet certain very limited requirements are considered “exempt” from minimum wage and overtime requirements. The exemptions to the law are based on job duties and certain pay requirements, not based on the your job title given by your employer. The most commonly applied exemptions to the FLSA are often referred to as the “white collar” exemptions for certain administrators, executives and professionals. You should consult one of our overtime lawyers to discuss if you are properly classified as an “exempt” employee.
How much can I recover if I file suit? The law allows you to recover the overtime and minimum wages you should have been paid within certain timeframes. In most cases, you can also recover double the amount of wages you are owed. If you prevail in your claim, you may also be awarded attorneys’ fees and costs.
Can my employer fire me if I file a lawsuit or complain about receiving proper overtime or minimum wages? No. Any kind of retaliation against an employee for participating in a lawsuit or administrative proceeding under the FLSA is against the law. An employer cannot fire or retaliate against an employee if the employee sues for unpaid wages. An employer who “blackballs” or demotes the employee, reduces the employee’s hours, shifts, or duties, or gives false poor performance evaluations, violates the law.
What if I signed a contract or agreed to work overtime without pay? Employees are not able to waive their right to overtime pay. Regardless of the terms of your employment or any agreements you may have signed, your employer is required to pay you overtime if you are not exempt under the FLSA.
Must overtime be approved by a supervisor? No. Lack of approval from the employer will not prevent an employee from recovering overtime pay for time worked.
What if I do not have records of my work hours? The burden is on the employer to keep accurate records of hours worked by employees. Courts typically allow an employee to realistically and reasonably estimate the number of hours worked.
If I am not a legal citizen of the United States can I still recover unpaid wages and overtime? Yes. The law provides for payment of anyone who has worked overtime regardless of citizenship.
If I receive tips may I still be entitled to recover unpaid wages and overtime? Yes. If you regularly receive tips from customers, your employer may deduct a limited amount of money – called a “tip credit” – from the minimum wage that would otherwise be required. However, the Department of Labor has developed strict regulations as to when an employer may claim a credit. If the employer does not follow these regulations, the “tip credit” is invalid and the employer can be held responsible to pay the employee the regular minimum wage rate regardless of the amount the employee received in tips. In addition, the employee is entitled to overtime wages if the employee worked more than 40 hours a week.
How far back can I go to recover fair pay and overtime wages? In New York State, the law allows employees to recover six (6) years of unpaid wages and overtime compensation.
Does it cost anything to speak with an attorney at Cilenti & Cooper, PLLC? No. Our initial consultation is free. If we reach an agreement about representation, the agreed upon fee arrangement will be set forth in a written agreement. In most cases, we represent clients on a contingency fee basis, which means that if we do not recover any unpaid wages on your behalf, you do not have to pay us anything. If we do recover back wages or unpaid overtime we would receive a percentage of the total amount of money recovered. Therefore, regardless of the outcome you pay nothing.