New York Overtime Pay & Wages Attorney

Labor & Overtime Pay Laws in New York​

New York Minimum Wage

The New York state minimum wage rates increased as of 12/31/16 and continues to increase until it reaches $15 per hour.
There are different minimum wage rates for different areas of New York.

Location	12/31/16	12/31/17	12/31/18	12/31/19	12/31/20	12/31/21	12/31/22*
NYC – Big Employers (of 11 or more)	$11.00	$13.00	$15.00
NYC – Small Employers (10 or less)	$10.50	$12.00	$13.50	$15.00
Long Island & Westchester	$10.00	$11.00	$12.00	$13.00	$14.00	$15.00
Remainder of New York State Workers	$9.70	$10.40	$11.10	$11.80	$12.50	$13.20	$14.20*

* The minimum wage rate for the remainder of New York State will continue to increase until it reaches $15 per hour.

Prior minimum wage rates for New York are as follows:

• July 24, 2009 Increased from $7.15 to $7.25
• December 31, 2013 Increased from $7.25 to $8.00
• December 31, 2014 Increased from $8.00 to $8.75
• December 31, 2015 Increased from $8.75 to $9.00

Industry Specific Minimum Wage Laws

New York state labor laws set specific requirements for different industries. Please see the following links for the New York minimum wage rate for your specific industry:

• New York Hospitality Industry (including fast food workers)
• New York Building Service Industry
• New York Miscellaneous Industries and Occupations
• New York Farm Workers

Overtime Regulations in New York

New York overtime laws state that employees who are not exempt from the overtime regulations (non-exempt employees) must be paid at 1 ½ times their regular hourly rate of pay for all overtime hours.
According to New York State overtime laws, 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.

Live In Workers & Overtime

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 Exemptions

Exclusions (exemptions) from the overtime pay regulations follow the federal Fair Labor Standards Act (FLSA). However, the minimum weekly salary that must be paid, on a guaranteed basis, to an employee who is classified as “exempt” under the executive and administrative employee exemptions is higher than the federal minimum of $455* per week ($684/week as of 1/1/2020).

Under New York state labor regulations, this minimum salary for the Executive & Administrative exemptions has been raised, inclusive of eligible wage allowances (i.e., board, lodging, facilities, etc.) to the following rates:

Location	12/31/16	12/31/17	12/31/18	12/31/19	12/31/20	12/31/21	12/31/22*
NYC – Big Employers (of 11 or more)	$825.00	$975.00	$1,125.00	$1,125.00	$1,125.00	$1,125.00
NYC – Small Employers (10 or less)	$787.50	$900.00	$1,012.50	$1,125.00	$1,125.00	$1,125.00
Long Island & Westchester	$750.00	$825.00	$900.00	$975.00	$1,050.00	$1,125.00
Remainder of New York State Workers	$727.50	$780.00	$832.00	$885.00	$937.50	$990.00

Prior Executive & Administrative Exemption Minimum Salary rates for New York were as follows:

• • $543.75 per week, effective July 24, 2009
  • $600.00 per week, effective December 31, 2013
  • $656.25 per week, effective December 31, 2014
  • $675.00 per week, effective December 31, 2015

* The Department of Labor under the Obama Administration increased this salary amount to $913 per week effective 12/1/2016; however, this increase was blocked by a court ruling. Instead, the Trump Administration only increased the minimum “exempt” salary to $684 per week ($35,568 per year) as of 1/1/2020. Please see this page for the latest updates.

Truck Drivers:  Under the Fair Labor Standards Act, the Motor Carrier Act exemption exempts many truck drivers from receiving overtime pay.  While New York state law also recognizes this exemption with regard to time and a half pay at the drivers’ regular rate, the New York Department of Labor and a recent appellate court opinion hold that drivers must still be paid at least time and a half New York state minimum wage for all overtime hours worked.

Overtime Hourly Rates

New York overtime laws stipulate that 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, Tip Pooling, and Credit Card Charges

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.

Service Charges

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.

Call-In / Reporting Pay / Predictable Schedule

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.

Under New York City’s Fair Workweek Law, fast food employers must give their workers predictable work schedules.  Enacted in November 2017, the FWWL requires fast-food employers in New York City to provide workers with a good-faith estimate of when, and how many hours, they are expected to work, as well as the opportunity to work newly available shifts before hiring new employees. Employers are also barred from scheduling workers for back-to-back closing and opening shifts, unless they pay a $100 premium.
The law covers employees who perform at least one of the following tasks at a fast food establishment in NYC:

• ƒƒ customer service
• ƒƒ cooking
• ƒƒ food or drink preparation
• ƒƒ off-site delivery
• ƒƒ security
• ƒƒ stocking supplies or equipment
• ƒƒ cleaning
• ƒƒ routine maintenance duties

The law applies regardless of immigration status, and employers cannot punish, penalize, retaliate, or take any action against employees that might stop or deter them from exercising their rights under the law.

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

New York state law provides that an employer is obligated to pay one hour’s pay at the basic minimum hourly wage rate for any day in which a non-exempt employee’s spread of hours exceeds 10 hours or the employee works a split shift.
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).
  • For example, if an employee works from 9a to 12p and then again from 9p to 11p during the same day, the employee has worked 6 hours over a 14-hour spread.
• 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.
  • In the same example as above, if an employee works from 9a to 12p and then again from 9p to 11p during the same day, the employee has also worked a split shift.  Only 1 additional hour of pay is required when there is a split shift & the spread of hours exceeds 10 hours.

NOTE:  The majority of courts have held that no additional pay is due under the ‘spread of hours’ regulation if the employee’s total pay for the shift is greater than the total of all hours worked at minimum wage plus the spread of hours premium of one additional hour at minimum wage.

How are spread hours calculated in NY?

Example: 

Hourly rate: $20/hour

Total Shift Hours: 11 hours

Applicable Minimum Wage: $13/hour

(A) Total earnings for the shift:  $20 x 11 hours = $220

(B) Minimum Wage earnings for the shift + Spread of Hours Premium (1 hour at minimum wage):  $13 x 11 hours + $13 = $156

Since the employee’s actual pay (A) is greater than what they would have been paid at minimum wage plus the spread of hours premium (B), no additional pay is due under the spread of hours regulation.

Holidays / Vacation / Sick Leave

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 / Rest Periods

New York State 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 Stubs / Pay Periods / Deductions

Pay Stub Information and Requirements

The New York Wage Theft Prevention Act requires all pay stubs/wage statements to contain the following information:

• Employer’s name, address, and phone number;
• Employee name;
• Dates covered by payment (pay period);
• Basis of payment (hourly, salary, commission, etc.);
• Rates paid (regular and overtime);
• Hours worked (regular and overtime)
• Allowances or credits applied against wages;
• Gross wages;
• Any deductions from wages; and,
• Net wages

Employees who do not receive proper pay stubs can be entitled to recover damages of up to $250 per violation and $5,000 per employee.  More information on NY pay stub law.

Pay Periods

• Manual workers – (with some exceptions) must be paid weekly within 7 calendar days after the week in which work was done.  See below for further details.
• 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)

New York state law requires that “manual workers” be paid on a weekly basis. The New York Department of Labor considers “manual workers” to include individuals who spend 25% or more of their working time engaged in physical labor. Physical labor includes all types of physical tasks that are not limited to heaving lifting, such as stocking shelves, unpacking boxes, cleaning tasks, operating machinery and arranging inventory. Manual workers can include jobs such as customer service associates, specialists, stockers, and similar positions…even hairdressers and restaurant workers are considered manual workers under New York labor law.

While certain employers may get authorization from the labor commissioner to pay these types of workers at least semi-monthly, most do not. So, paying their hourly manual employees on a bi-weekly or semi-monthly basis violates the New York Labor Law that mandates manual workers be paid within seven calendar days of the end of the week in which their wages were earned. This violation entitles employees to seek damages for late payment under NY state labor laws, including liquidated (double) damages.

Employees must be 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.

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 wage

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.
However, the New York Department of Labor‘s website states they will only pursue claims for wages due for the prior three (3) years.

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” if it is proven that any NY overtime laws have been broken.

Contact Our Top-Rated New York Overtime Attorneys

If you have further questions about the overtime and labor laws in New York State or if you believe you are due overtime pay, reach out to one of our knowledgeable New York overtime pay attorneys or fill out a free case evaluation form.

Frequently Asked Questions

How long does an unpaid overtime lawsuit in New York take?

After filing a lawsuit to recover unpaid overtime in NY, the amount of time that it takes to reach a resolution or settlement can vary based on a number of factors. Some cases resolve very quickly (within a few months) and other more complex cases can typically take 1-2 years or more. The vast majority of overtime cases filed in NY move through the process and reach a settlement prior to a trial.

How long do I have to bring a wage claim under New York labor law?

The statute of limitations for bringing a claim for unpaid overtime wages is 6 years under NY law.

What is considered overtime in the state of New York?

In New York, when an employee is not an “exempt” worker, every hour worked over 40 hours per week is considered overtime. Non-exempt employees must receive overtime pay at the rate of 1½ times their regular rate of pay for all hours worked over 40 in a workweek.

Which occupations are exempt from the overtime pay provisions of the NY State Labor Law?

• Executive Employees
• Administrative Employees
• Professional Employees
• Outside Salespeople
• Individuals Working for a Federal, State, or Municipal Government
• Farm Laborers
• Certain Volunteers, Interns and Apprentices
• Taxicab drivers
• Members of Religious Orders
• Certain Individuals Working for Religious or Charitable institutions
• Camp Counselors
• Individuals Working for a Fraternity, Sorority, Student or Faculty Association
• Part-time Babysitters

If I work weekends or holidays in New York, will I receive overtime pay?

New York law does not require employers to pay employees extra for working on holidays or weekends unless there is an individual employment contract stating otherwise. The other exception would be if the time worked on the holiday or weekend requires the employee to work more than 40 hours that week.

What makes a worker an employee or an independent contractor in New York?

An independent contractor is considered to be a worker who is contracted to do a specific job or work without the control, direction or supervision of the company. If the employer has the right to control the work a person does, then they are likely an employee and not a contractor.

An employer-employee relationship likely exists if the hiring party:

• Chooses when, where, and how the services are performed
• Provides facilities, equipment, tools, and supplies
• Directly supervises the services
• Sets the hours of work
• Sets the rate of pay
• Requires attendance at meetings and/or training sessions
• Requires prior permission for absences

If I take a meal break at work, am I paid for that time by my employer?

Your employer is not required to compensate you for time spent taking a lunch or meal break at work, so long as you are relieved of all duties during this time. If you are frequently interrupted during your lunch or meal break and called upon to do work, this should be counted as time worked and paid accordingly.

Can employees waive or sign away their right to receive overtime pay under NY law?

No. The right for non-exempt workers to receive overtime pay under NY labor law cannot be waived or given up by an employer and employee entering into an agreement. Any agreement that attempts to deny workers the right to overtime pay will be considered illegal and unenforceable under NY law.

What types of workers must get prevailing wages in New York?
Workers may be eligible to receive prevailing wage rates if they work on federal, city or state government contracts or government-funded construction projects. Many contractors fail to pay workers at the rates required by the contracts for these public projects. By doing so, workers are paid not only for each regular hour worked, but also for the overtime hours they work which should be calculated at time and one-half the higher prevailing wage rate.