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Protecting the Rights of New York City Employees to Proper Overtime Payment

Both federal and state laws provide the right to overtime pay for qualified workers. For those people who are paid an hourly wage or who are not exempt from overtime requirements, employers are required to pay one-and-a-half times their usual hourly pay for any hours worked in excess of 40 per week. While this requirement seems straightforward, New York employers can violate overtime laws in many different ways—either intentionally or unintentionally.

Failing to pay proper overtime is a form of wage theft, and companies should be held fully accountable for this violation. If you believe that your employer has failed to properly pay you overtime, please do not delay in discussing your concerns with an experienced New York City wage and hour attorney at Braverman Law, PC.

Who Should Receive Overtime Rates?

The right to overtime pay for certain workers is provided by the federal Fair Labor Standards Act (FLSA) and also New York State Wage and Hour Law. The law divides workers into two main categories—exempt and non-exempt. Anyone who qualifies as non-exempt has the right to be paid time-and-a-half for overtime hours worked.

Hourly employees are entitled to overtime, but that does not mean that all salaried employees are exempt. Instead, to qualify as exempt, you must earn a salary and have a job position with duties that meet certain requirements. These positions include managers, executives, administrative employees, outside sales professionals, and computer professionals. If your job duties do not fit into one of the exemptions, you deserve overtime whether you are paid hourly or by a salary.

With these laws in place, workers who exceed the regular 40-hour workweek should expect overtime properly reflected on their paychecks. Unfortunately, too many workers in and around New York rightfully suspect that their employers have violated their overtime rights.

Common Overtime Violations

While some employers simply refuse or fail to pay overtime rates to deserving workers, they can violate overtime laws in many other—and often less obvious—ways. Common ways that your employer may violate your rights follow below.

Misclassifying Workers

A company has two ways to misclassify someone to avoid having to pay overtime. First, it can classify a worker as an independent contractor instead of an employee. Wage and hour laws—including overtime requirements—only apply to employees. The courts use a specific legal test to determine whether someone is an independent contractor or not, so this is based on more than an owner's self-interested determination. If you should have been an employee, you deserve overtime wages (and potentially other damages) for all overtime hours you worked while you were misclassified as an independent contractor. You can read more about misclassification of independent contractors here.

In addition, a company may give a certain person a job title to classify them as “exempt”—when in reality their job duties do not fit into any exemption. A common example is to call someone a manager when they truly do not have management powers. People who are misclassified as exempt deserve back pay for all of the overtime hours they worked. The details of the exemptions are discussed in greater detail here.

Miscalculating Hours

Another way employers try to avoid overtime is by improperly calculating the time someone has worked to keep the employee's hours at less than 40 per week. An employer, for example, may require workers to set up before clocking in, or to clock out before they clean up at the end of the day. You should be paid for all the time that you work—including setting up and cleaning up. Requiring you to work off the clock is a wage and hour violation.

Employers may also subtract from your hours rest breaks to which you were entitled. Consider the following:

  • You worked 8.5 hours per day, taking two 15-minute rest breaks that should be paid as required by law.
  • Your employer subtracts those two breaks from your hours, thereby keeping your hours at eight hours per day.
  • You lose out on a half-hour per day of overtime pay at time-and-a-half.

While a half hour of overtime pay may not seem like a big deal, it can add up quickly if your employer is in the regular practice of violating the law. If you make $13. per hour, missing out on 30 minutes of overtime every workday can cost you $48.75 per week or $2,535 per year!

Giving “Compensatory” Time Instead of Overtime

The law requires that you are paid overtime rates for hours worked in excess of 40 per week, and your employer cannot instead offer you time off on a different day to avoid paying you proper overtime wages.

Undocumented workers are also protected by law and entitled to overtime pay. If an undocumented worker tries to seek back pay for unpaid overtime, an employer is not allowed to raise issues about their immigration status to avoid payment.

Seeking unpaid overtime is not a simple task, especially if your employer does not keep clear records. You need a law firm on your side that knows how to obtain the proper records and determine your rights to overtime—and whether those rights have been violated.

Find out How a New York City Overtime Lawyer Can Help You

Too many employers in New York try to save money by cheating their employees out of proper overtime pay. Other companies may simply make errors that result in unpaid overtime. In either situation, anyone who has been denied the overtime wages they deserve has the right to take legal action to obtain their rightful pay.

The overtime attorneys at Braverman Law PC regularly help clients pursue unpaid wages and overtime. We can evaluate your case and advise you of your legal rights. Please do not hesitate to schedule a consultation by calling (212) 206-8166 or by contacting us online today.


We will use our years of expertise and experience to fight for your rights as a business owner or employee. We have the skills, dedication, and knowledge to protect your best interests.