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Both Federal and New York State law require that employers pay the vast majority of employees at least the minimum wage and overtime at the rate of one and a half times their regular hourly rate for all hours worked in excess of forty hours in a week. The current federal minimum wage is $7.25. In 2017, the minimum wage is $11.00 for New York City employers with 11 or more employees, and is $10.50 for New York City employers with 10 or less employees. For employers in Long Island and Westchester the minimum wage is $10.00, while everywhere it is $9.70. Every year there are hundreds of cases filed in courts throughout New York by employees who claim they were not paid the minimum wage or overtime. Below are some of the most common types of cases involving the failure to pay minimum wage and overtime.
According to New York State law employers must pay non-exempt employees based on the number of hours they work. Many employers, particularly restaurants, pay their employees fixed weekly or monthly salaries regardless of the number of hours they actually worked. Employees who were paid a fixed salary and worked more than forty hours per week likely have a claim for unpaid overtime.
The majority of employees are “non-exempt.” That means that they must be paid the minimum wage and receive overtime. However, certain occupations are considered “exempt” which means that they are excused from overtime requirements. Many of the traditionally salaried occupations are exempt. These include professional employees (e.g. lawyers, doctors, accountants), administrative employees (tax experts, financial consultants, and auditors), managers, interstate truck drivers, and certain salespeople. If you do not fall within these categories that means you are likely non-exempt and must be paid overtime. Many employers incorrectly classify employees as exempt, such as assistant managers, nurses aides, or secretaries and unlawfully fail to pay overtime for work performed in excess of forty hours in a week. In addition many workers who are classified as independent contractors are actually employees and are also entitled to overtime.
Employers are required to record the number of hours employees worked and pay them based on those hours worked. Many employers will have a punch clock or sign in sheet system, however, they will require employees to work “off the clock,” or more time than indicated on the records. For example employers will tell their employees to show up for work at 8:00am but tell them not to punch in until 9am, or to perform work after they already punched out. Employees who do off the clock work are entitled to pay for all of the hours they actually performed any work, including any overtime premiums. Additionally employers are required to pay employees for any necessary transportation time during work hours, and in certain circumstances for “on-call” time.
- Tipped employees such as waiters, busboys, bartenders and delivery workers can be paid somewhat less than the minimum wage by taking a “tip credit.” In 2017 the minimum wage for tipped employees in the hospitality industry (restaurants, hotels, etc.) is $7.50 in New York State. However, employers must provide employees with notice that they are taking a tip credit, otherwise they must pay them the full minimum wage. Moreover, employees must receive the equivalent of the hourly minimum wage after tips (In 2017, if the employee is paid $7.50 per hour for a New York City employers with 11 or more employees, they must receive at least $3.50 per hour in tips for a total of $11.00 per hour).
- Tipped employees may share their tips with other tipped employees in what is typically called a “tip pool.” However, it is unlawful for managers or supervisors to participate in the tip pool. Further, it is also illegal for your employer to unreasonably deduct from an employee’s tips. A tip pool must be reasonable, that means if you are being forced to give up a large percentage of your tips as part of the tip pool that is likely a violation of the law.
The Domestic Workers Bill of Rights was passed in 2010. Under this law domestic workers must be paid at least the New York State minimum wage. Domestic workers must also be paid one and a half times their regular hourly rate after forty hours of work in a calendar week, or after forty-four hours if the employee lives in the home. In addition, workers must be provided with one 24 hour rest day per week, and at least three paid days off after the first year of employment.
Harassment and discrimination remain prevalent in today’s workplace. There are a number of State and Federal laws that protect employees from unwanted harassment and discrimination. Specifically there are laws that protect employees from discrimination based on an employee’s race, national origin, religion, age, gender, pregnancy, disability, sexual orientation, marital or familial status, and military status. If an employer takes an adverse action against an employee on the basis of any of the above categories that employee likely has a claim for discrimination. Examples of adverse actions include, firing, failure to hire, unequal pay, unequal benefits, and missed promotions. Employees may also file claims where they feel they are being subjected to harassment or a hostile work environment. If an employee is being harassed by a co-worker and after complaining the employer takes no action that is generally sufficient to establish a claim for hostile work environment. Finally, employers must also give employees with disabilities, including pregnancy, “reasonable accommodations” when requested, this includes requests for medical leave.