What To Do If You Are Not Getting Paid Minimum Wage In NY?

What To Do If You Are Not Getting Paid Minimum Wage In NY

Every day, people work hard to bring home a paycheck, and for most of them, every dollar matters. Between bills, food, debt, and other expenses, most employees can’t afford to lose a single wage. However, despite many state and federal laws requiring business owners to provide a minimum wage, many employers try to avoid paying their employees the wages they deserve.

If you have found yourself in this situation, there are steps you can take to make sure all of your unpaid wages will be paid. Before taking any action, it is advisable to try and talk about the matter with your employer. There is a chance that your employer is not aware of the mistake he has made. In that case, he will pay you back all the unpaid wages. However, if they refuse to pay what they owe you, there are a couple of things you can do. But first, let’s revise your rights according to the New York state laws.

Understanding Your Rights to a Fair Minimum Wage

In April of 2016, as part of the 2016/2017 State Budget, New York’s Governor Cuomo signed legislation enacting a statewide $15 minimum wage plan to lift the earnings of more than two million New Yorkers in all industries across the state. The New York minimum wage rate depends on the particular industry whether employees are tipped or not. 

As of January 2022, the minimum wage for non-tipped employees who work in New York City and the surrounding counties s $15. Companies with eleven or more employees are obligated to pay $15 per hour, while Suffolk, Nassau, and Westchester county businesses for all work sizes have to pay $14. The minimum wage for workers who make tips also depends on their company’s industry and location.

As of July 2021, all of New York’s fast-food workers get $15 per hour. No tip credit is allowed to be taken against the wages of fast food workers. Food service workers, such as waiters/waitresses, food runners, and bussers, that work in NYC and the surrounding counties receive at least $10 per hour with the employer permitted to retain  $5 in tip credits against the minimum wage. As for service employees in the hospitality industry working in NYC and the surrounding counties, they must receive at least $12.50 per hour, with the employer permitted to take $2.50 in tip credits against the minimum wage. 

However, in order for the employer to pay the tipped employee at the reduced hourly rate, certain prerequisites must be performed by the employer, including providing their tipped employees with a written wage pay notice, which must include:

  • Pay rate, including overtime;
  • Amount of any tip credit taken
  • How the employee is paid (hourly, daily, weekly, etc.);
  • The date of the payday;
  • The Doing Business As (DBA) name of the employer;
  • Contact information of the employer; and
  • Allowances towards the minimum wage, such as tips, meals, lodging, etc.

Additionally, NY employers must provide workers with 40 hours of paid leave and sick leave, which they can use as accrued, with no waiting period for new employees. Employers are obliged to inform their employees of their accrued, used, and total leave balances on a document, usually a paystub, or through an employee-accessible electronic system. 

What Can You Do If You’re Not Getting Paid Your Minimum Wage?

Every employee has the right to be paid for every hour of their work. If your employer pays you less than the minimum wage or refuses to pay you at all, they are breaking the wage and hour laws. A New York state employer could be violating wage and hour laws by not including certain time as work time, such as:

  • Time an employee worked ‘off the clock,’ before clocking in or after clocking out for the day;
  • Required training programs and classes;
  • Meals or rest breaks that an employee had to work through;
  • Certain travel time; and
  • Waiting time that an employee has spent on the employer’s premises.

If anything like this happens, an employee has the right to file a complaint about their unpaid wages against the employer. This way, an employee will be able to get what’s rightfully theirs as well as some additional monetary compensation in the form of liquidated damages. These damages generally tend to be equal to the amount of unpaid wages. In addition, employees may also collect interest in unpaid wages, attorney fees, and legal costs. 

The US Department of Labor enforces the Fair Labor Standards Act (FLSA). Suppose the Wage and Hour Division investigators determine that an employer is not in compliance with the law. In that case, they can recommend changes to employment practices to bring the employer back into compliance.

How to File a Claim for Unpaid Wages?

The best and most efficient method is to file a private lawsuit against your employer. If you opt for this direction, it is highly advisable to hire an experienced employment lawyer. Make sure to contact an attorney who offers a free initial consultation where you will discuss your agreed-upon attorney’s fees. The best option is to find a lawyer who provides free consultation and works on a contingency fee basis. A contingency fee means that your lawyer will get paid only if he is able to recover your unpaid wages.

Once you’ve found a lawyer, you can start working on your claim analysis. Your lawyer will help you figure out how your employer has violated state and/or federal laws and provide you with options for challenging his illegal conduct. In NY, it is preferable to file a lawsuit in a federal court. Another option is to have your lawyer negotiate a settlement with your employer.

It’s crucial to know that you have six years to collect your unpaid wages under state law and only two years under federal law. It is advisable to consult with a lawyer as soon as you realize you have an unpaid wage claim. You should also know that it is a violation of the law if your employer takes discriminatory measures against you while filing your claim.

To find out whether you have a case worth pursuing, feel free to contact Cilenti & Cooper today. We treat every case with the attention and care it deserves and can fight for your rights from beginning to end. We offer a free consultation to all of our prospective clients, so you have nothing to lose.



Let us fight to recover the wages you have earned.

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