Overtime Pay Laws New York
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.Below is an overview of the minimum wage and overtime pay laws that apply to workers in the state of New York. Private actions to enforce New York’s wage and hour laws, and recover unpaid overtime due to workers, are commonly brought (on a contingent fee basis) by employment law firms such as The Lore Law Firm. If you believe that you have been deprived of the overtime pay that you are legally entitled to, please contact us for a free and confidential review of your situation.
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.
New York Hospitality Wage Orders have been revised. These revisions go into effect January 1, 2011 but employers have until March 2, 2011 to comply. Under these revisions, food service workers are entitled to receive a cash wage of at least $5.00 per hour, provided that the worker’s tips, when added to the $5.00, total at least $7.25 per hour.
Service employees in all establishments are entitled to receive a cash wage of at least $5.65 per hour, provided that the worker’s tips, when added to the $5.65, total at least $7.25 per hour.
Service employees in resort hotels, including chambermaids, are now entitled to receive a cash wage of at least $4.90 per hour, provided that the worker’s weekly average of tips adds up to at least $4.10 per hour.
Meals allowances of $2.50 per meal can be deducted from a worker’s pay for food service workers in the restaurant or hotel industry.
In addition, all non-exempt employees (except commissioned salespersons) are required to be paid on an hourly rate basis. Salaries, weekly rates, day rates, or piece rates are no longer allowed.
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.
Under the new hospitality regulations, residential workers (“live-in workers”) are now entitled to overtime for hours worked over 40 in a payroll week, instead of the prior 44 hour requirement. Therefore, overtime hours for all non-exempt workers are now any hours worked over 40 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).
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.
- Non-exempt employees 40 hours
Employees of resort hotels – for hours worked on the seventh consecutive day in any week.
Tip sharing and tip pooling is allowed among employees who, as a regular part of their duties, perform or assist with personal service to customers. Employers are required to keep tip records for at least 6 years and employees are allowed to view these records.
Employers are allowed to charge employees the same percentage that the credit card company charges the employer for processing tips or gratuities charged to a credit card.
Added charges for services are presumed to be gratuities and must be distributed to the employee performing the service unless the charge is clearly identified to the customer as an administrative charge and not a gratuity or tip.
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:
- for at least three hours for one shift, or the number of hours in the regularly scheduled shift, whichever is less;
- for at least six hours for two shifts totaling six hours or less; or the number of hours in the regularly scheduled shift, whichever is less; and
- for at least eight hours for three shifts totaling eight hours or less, or the number of hours in the regularly scheduled shift, whichever is less.
New York state law now provides that, the employer is obligated to pay one hour of additional pay for each hour in excess of 10 hours and for each split shift to all non-exempt employees.
This applies to situations where:
- 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).
- 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.
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.
- 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.
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.
- 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 given written notice of the following at the time of hiring and of any changes prior to the time of the change:
- Regular hourly pay rate
- Overtime hourly pay rate
- Amount of tip credit taken, if any
- Regular pay day
Upon termination, wages must be paid by the regular payday for the period worked.
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.
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.
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.”