New York Overtime Law, Pay, FLSA Claims

New York Overtime & Minimum Wage Regulations

New York State Labor Laws relating to minimum wage, hours of work, wage payments and supplements, etc. are enforced by the Division of Labor Standards.

Minimum Wage

The New York minimum wage for most employees is $7.25 per hour, effective July 24, 2009 ($7.15 prior to July 24, 2009). The current Federal minimum wage rate is $7.25 per hour effective July 24, 2009. Prior to July 24, 2009, it was $6.55 per hour. Separate rules apply for certain workers, including those who receive tips. As of January 1, 2007, food service workers are entitled to receive a cash wage of at least $4.60 per hour, provided that the worker’s tips, when added to the $4.60, total at least $7.15 per hour. Meals allowances of $2.10 per meal can be deducted from a worker’s pay for food service workers in the restaurant or hotel industry.

Overtime Regulations

Employees who are not exempt from the overtime regulations (non-exempt employees) must be paid at one and one-half times their regular hourly rate of pay for all overtime hours.

Overtime hours for non-residential workers are all hours worked over 40 in a payroll week. Overtime hours for residential workers (“live-in workers”) are all hours worked over 44 in a payroll week.

Overtime pay is based on the total hours worked during a payroll week and is not required just because work is performed on Saturday or Sunday or beyond 8 hours per day.

Exclusions (exemptions) from the overtime pay regulations follow the federal Fair Labor Standards Act (FLSA).

Overtime hourly rates

An employer shall pay an employee for overtime at a wage rate of 1 ½ times the employee’s regular rate for hours worked in excess of maximum hours as listed below.

• Nonresidential employees 40 hours
• Residential employees 44 hours
• Employees of resort hotels - for hours worked on the seventh consecutive day in any week.

Call-in / Reporting pay

If an employee reports for duty on any day, at the employer’s request or with permission, whether assigned to actual work or not, they are entitled to be paid at the minimum wage rate:

1. for at least three hours for one shift, or the number of hours in the regularly scheduled shift, whichever is less;
2. for at least six hours for two shifts totalling six hours or less; or the number of hours in the regularly scheduled shift, whichever is less; and
3. for at least eight hours for three shifts totalling eight hours or less, or the number of hours in the regularly scheduled shift, whichever is less.

Spread of Hours (10+ hour days and Split Shifts)

New York state law provides that, when employees are paid at or near the minimum wage, the employer is obligated to pay one hour of additional pay for each hour in excess of 10 hours and for each split shift.

This applies to situations where:

1. The employee’s spread of hours’ exceeds 10 hours (from the start of the day to the end of the day, including meal and break time).
2. When the employee works a split shift in the workday with nonconsecutive work hours. Meal periods of one hour or less don’t count to interrupt the continuity of the shift.

Holidays / Labor Law

New York state law does not require payment for time not actually worked such as holidays, sick time or vacation. If an employer provides these benefits, they may impose any conditions they choose, including the forfeiture of such benefits under certain circumstances. These policies must be in writing and the employees must be notified of the policy; otherwise, the employer must pay the employee for accrued vacation upon termination of employment.

Meal Breaks

• Factory workers – Must be given at least a 60 minute break for a noonday meal. For shifts starting between 1:00 p.m. and 6:00 a.m., factory workers must be given a 60 minute meal break halfway between the start and end of the shift.
  
  
• Mercantile & other workers - Must be given at least a 30 minute break for noonday meal if they work a shift of more than 6 hours which extends over the noonday meal period from 11:00 am to 2:00 pm. If they start before 11:00 a.m. and work later than 7:00 p.m., they must get an additional meal break of at least 20 minutes between 5:00 p.m. and 7:00 p.m. For shifts starting between 1:00 p.m. and 6:00 a.m., these workers must receive a 45 minute meal break at a time midway between the start and end of such shift.

All workers, including white collar management staff, are covered by these provisions. Shorter meal periods of not less than 30 minutes are permitted if this does not create a hardship for employees. In situations in which there is only 1 employee on duty, the employee can eat on the job without being relieved as long as the employee voluntarily consents to the arrangement. However, if the employee requests an uninterrupted meal period, they must be given one.

Rest Periods

New York labor laws do not restrict the number of hours an employee may be required to work unless they are younger than 18 years old. Other breaks are generally not required; however, some industries do require a 24-hour rest period in each calendar week.

Pay Periods

• Manual workers - (with some exceptions) must be paid weekly within 7 calendar days after the week in which work was done.
• Railroad workers - must be paid on or before Thursday of each week for wages earned during 7 days ending on the preceding Tuesday
• Commission salespersons - must be paid at least once a month
• Clerical workers – must be paid at least semi-monthly (twice a month)

Employees must be notified of the regular pay day at the time of hiring and of any changes prior to the time of the change.

Upon termination, wages must be paid by the regular payday for the period worked.

Deductions

The following deductions can be made from wages:

• Deductions required by law
• Deductions that are expressly authorized in writing by the employee for their benefit. Breakage, spoilage or shortage costs cannot be deducted from an employee’s wages

Statute of Limitations

The statute of limitations for bringing New York Labor Law claims is six (6) years - meaning back wages can be recovered from the time of the filing of a lawsuit going back 6 years in time.

Class Actions

Overtime and wage claims may be brought as a class action under New York state law.

The employees who bring the class action lawsuit as class representatives are usually awarded extra compensation in addition to their individual recovery as a form of "incentive pay."