Provided how some of the most common labor law violations involve employers not paying for overtime work, a complete guide to NYC Overtime Laws is much-needed for all New York employees. To best understand your rights and your employer’s responsibilities, you should familiarize yourself with everything you need to know about the overtime law.
The foundations of all employment laws are laid out in the Fair Labor Standards Act (FLSA), a federal labor law put together by the US Department of Labor. Each US state enforces this law and introduces additional protections to their workers if necessary.
There are many different aspects to the New York Overtime Law, starting with the overtime hourly rates, to what is considered overtime, to how many hours per week an employee is allowed to work. For the most part, New York Labor Laws follow the FLSA, with only a few notable differences that we’re going to talk about in this post.
Who is eligible for overtime pay in NYC?
The FLSA has two categories of employees: those who are exempt from overtime pay and those who are not.
Overtime exemptions include:
- Executive exemptions
- Professional exemptions
- Administrative exemptions
- Computer exemptions
- Outside salespeople
The first step in figuring out whether you belong in one category or the other is to check whether you meet the weekly salary threshold. If it is at least $684 per week, then you fulfill one of the criteria for exemption. However, you also need to fulfill all the other requirements, such as performing the type of primary duties defined by the FLSA. Since employers tend to misclassify their nonexempt employees as exempt (whether deliberately or by accident), it would be best to make sure which group you belong in without a shadow of a doubt.
Nonexempt employees have the right to overtime pay regardless of whether they are salaried employees or not.
What is considered overtime in NYC?
The FLSA, as the ground law, describes overtime hours as all hours worked over 40 in a workweek (payroll week).
New York Labor Laws go a step further and also define overtime hours for farmworkers.
Farmworkers are entitled to overtime for every hour worked above 60 in a calendar week, as well as any hours worked on their day of rest. Previously, overtime for residential employees (domestic workers who live in the house of their employer) used to be every hour worked over 44 in a workweek, but that limit has been reduced to 40, like for all other employees.
Work hours that are not considered overtime:
- Working over 8 hours in a single day. While some other states (such as California) do have a daily overtime limit, New York does not. If you work 10 or 12-hour shifts, as long as they don’t go over 40 hours in a week, you will be paid your regular rate for them.
- Working over the weekends, holidays, or at night. Again, unless these hours put you over the 40-hour threshold and unless you’re a farm laborer, then working on these days is considered regular hours.
However, suppose there is an agreement between an employee and employer or a collective bargaining agreement that requires the employer to pay overtime for work performed over the weekend, holidays, or night shifts. In that case, that agreement is enforceable by law.
Overtime Wages in NYC
The FLSA and the New York Overtime Law are in agreement over the overtime wage rate. For most nonexempt employees, the overtime wage rate must not be less than 1.5 times their regular rate of pay.
Some employees who are exempt from overtime under the FLSA are not exempt under the New York State Labor Law. These employees have the right to an overtime rate that is 1.5 times the state minimum wage, as opposed to their regular rate of pay.
The New York State minimum wage is $12.50 as of Dec 31st, 2020, but different regions have different minimum wage rates. For example, in NYC, the minimum wage is $15.00. In Long Island and Westchester county, it is $14.00. The future will see steady minimum wage increases until it reaches $15.00 in every part of New York.
Calculating the Regular Rate of Pay
The regular rate of pay must not be lower than the state minimum wage. It represents the amount of money an employee is regularly paid for each hour of work.
Some employees are paid on an hourly basis, but some have a fixed salary or are paid by piece work. In these cases, their regular pay rate has to be calculated.
By dividing the total earnings in a workweek by the total number of hours worked in that week, you get your regular hourly rate. However, for employees in the hospitality industry — such as those working in restaurants and hotels — the regular hourly rate of pay is determined by dividing their gross pay by 40 hours.
Here is a typical example:
If an employee works 50 hours in one payroll week and earns a total of $530 (before overtime), then their regular rate is:
$530 / 50 = $10.60 an hour
Regular Rate for 40+ Hours Workweeks
If your employment contract states that you have 40+ hours a week of “straight time,” you must still be paid for overtime. The number of hours an employee works in a payroll week only determines their hourly rate.
Here is an example of a regular rate for a workweek longer than 40 hours:
An employee works 45 hours for a weekly salary of $500.
Their regular rate is: $700 / 45 hours = $15.56 per hour
Their overtime rate is: $15.56 * 1.5 = $23.33 per hour
Their employer must pay $15.56 for the first 40 hours, and then $23.33 for the bonus 5 overtime hours the employee works in a week, no matter what it says in their contract.
Payments Not Included in the Regular Rate
According to the New York State Labor Law, some payments are not part of the regular hourly rate. These include:
- Premium payments for overtime work
- Premium payments for holiday and weekend work
- Discretionary bonuses
- Payments for vacation, illness, or holidays (periods when no work was performed)
- Pay for expenses incurred by the employer
How much overtime can you legally work in NYC?
The FLSA doesn’t provide a limit when it comes to overtime work. Technically, an employer can mandate as much overtime as they want, and they have the right to fire employees who refuse to perform the overtime work. However, employers are also obligated to pay overtime wages for all the overtime hours they mandated.
Labor laws in New York follow this example, though they provide mandatory overtime limits for certain professions, including nurses. White-collar employees, typically, have no overtime limits either in a day or a week.
One Day Rest in Seven
One Day Rest in Seven is a section of the NY Labor Laws according to which employers must provide a rest period of one day (24 consecutive hours) in a workweek for specific occupations.
These occupations include employees in restaurants, hotels, factories, mercantile establishments, theater productions, movie theaters, and more. It also includes superintendents, janitors, managers, and supervisors in warehouses, office buildings, apartments, storage houses, and other structures.
It needs to be clear that, even though workers in these sectors have the right to their one day of rest in seven, they can still be mandated to work overtime other days (with proper compensation, of course).
Nurse Mandatory Overtime
Nurses are often required to work 12 and 16-hour shifts with few breaks and often little notice beforehand. Such long hours can cause a wide variety of hazards, both for nurses and for their patients. Forcing nurses to work overtime has resulted in higher risks of medical errors, lower quality of care for the patients, and dissatisfaction for the nurses. Overworked healthcare professionals cannot balance their work and home life easily and suffer many mental and physical issues as a result.
The Institute of Medicine (IOM) even investigated the consequences of healthcare professionals who are not at their best. Back in 1999, IOM discovered that possibly up to 98,000 people lose their lives every year due to medical errors.
To prevent such unfortunate circumstances and provide a better quality of life for nurses, New York (and several other states) introduced regulations for nurse mandatory overtime.
According to these regulations, nurses are prevented from working overtime, unless there is a patient care emergency. ‘Overtime,’ in this case, means any number of predetermined and scheduled hours that a nurse has agreed to work. For example, if a nurse has agreed to work 50 hours a week, they cannot work any more than that.
This labor standard covers licensed practical nurses and professional nurses. It applies to nurses in hospitals, but also those in residential facilities, nursing homes, rehabilitation hospitals, diagnostic centers, outpatient clinics, and more.
Under this law, if a nurse wants to work overtime, they have the right to do that.
Truck and Bus Drivers
The regulation that ensures the safety of commercial motor vehicles is not New York specific, but it is a federal law that affects drivers in New York state as well. The Federal Motor Carrier Safety Administration (FMCSA) is a federal agency that defines the number of hours truck and bus drivers can work on any given day or week.
Property-carrying drivers are allowed to drive 11 consecutive hours after a break that lasted 10 consecutive hours. Drivers who carry passengers, on the other hand, are allowed to drive 10 hours at most after a break of 8 consecutive hours. Neither passenger- nor property-carrying drivers are allowed to drive for more than 60 hours in seven consecutive days.
NYC Overtime Laws FAQ
- Are workweeks the same as calendar weeks?
Workweeks, or payroll weeks, can be the same as calendar weeks, but they don’t have to. A workweek is a period of 168 consecutive hours (seven consecutive 24-hour days), and it doesn’t have to align with a calendar week. It can start at any hour of any day, depending on when an employee officially starts work.
It is not unusual for employees in different companies to have different workweek schedules. Even employees in the same company but different departments can have different workweeks.
However, it is unlawful for a single employee’s workweek to constantly change. One employee must have a fixed workweek start, and end and it cannot change from week to week. It has to be arranged in advance and agreed upon by the employee and the employer.
- Can an employer average out the number of overtime hours across two or more weeks?
One of the most common violations of the labor law is if an employer averages out the number of overtime hours an employee worked over two or more weeks, so they don’t have to pay overtime.
Here is an example:
An employee works 55 hours one week and 25 hours the next week. Their employer combines these two weeks and calculates the average number of hours the employee worked in one week: 55 + 25 = 80 / 2 = 40 hours a week.
According to these calculations, the employee worked 40 hours both weeks and thus is not entitled to receive overtime pay.
The FLSA clearly states that these types of calculations are unlawful. In this case, the employer has to pay overtime for the 15 additional hours the employee worked in the first week.
- Can an employee waive their right to overtime compensation?
An employee cannot waive their right to overtime. NYC employers (or employers in any other state, for that matter) cannot make employees sign agreements where only 8 hours a day or 40 hours a week will be counted as working time. No matter what the employment contract says, if they work overtime, employees have the right to be paid for that overtime.
In the same vein, employers cannot ban overtime work and cannot refuse to pay for overtime hours if those hours weren’t authorized in advance.
According to federal and state labor laws, if an employee works more than 40 hours a week, they have the right to overtime pay, no matter what their contract looks like.
- What if my employer is violating the labor laws?
If your employer is violating any section of the labor laws, be it not respecting the minimum wage regulations, not paying overtime, or in a different way, you have the right to report them.
Employment laws protect workers from retaliation in the case of filing complaints against their employers. Employers are not allowed to fire or in any way retaliate against employees who have reported them or are participating in the investigation of the Department of Labor.
These protections also extend to immigrant workers, no matter their immigration status in the country. Under the FLSA, everyone has the right to be fairly compensated for their work, regardless of their age, gender identity, sexual orientation, nationality, immigration status, and background.
The federal and state labor laws have strict definitions of employees who are exempt from minimum wages and overtime regulations and employees who are not. If you are a nonexempt employee in the state of New York, you are eligible for overtime pay for all hours worked over 40 in a payroll week. Farm laborers are entitled to overtime pay if they work more than 60 hours in a payroll week.
The minimum overtime wage rate is 1.5 times the employee’s standard rate of pay. This regular rate of pay cannot be lower than the minimum wage, and it can easily be calculated for employees who are not paid on an hourly basis. Similarly, employees who work 40+ hours in a single workweek as “straight time” should also calculate their hourly rate. They are also entitled to overtime compensation.
In New York, for most employees, there is no limit to the number of overtime hours they can work in a week. However, blue-collar workers, nurses, truck and bus drivers are the exceptions. Mandatory overtime is prohibited for nurses, while blue-collar workers and drivers require a specific amount of rest in a seven-day period.
Finally, if you suspect that your employer is violating the New York Labor Law in any way, you have the right to file a complaint. This complaint will then be investigated by the Department of Labor, and if there is a violation, you will be compensated for your unpaid wages.
If you have any questions about overtime laws in NYC or would like to check whether you have a case against your employer, please contact Cilenti & Cooper.