Many New York families are struggling to make ends meet. Because the job market is tight, employees feel extra pressure to preserve one’s current employment. The tight job market and pressure to reduce cost to cope with the economic slowdown creates pressure on employers to find ways to cut corners to preserve profit margins. One key way this often is accomplished is by avoiding paying for all of the time that employees work or by reducing the number of employees but having those on payroll work uncompensated overtime. Federal and state law strictly regulates wage and hour rules and provides that employees that are required to work overtime be compensated and not be forced to work time off the clock.
Despite these legal requirements many employers use various approaches of obtaining uncompensated labor by effectively having employees perform services off the clock that go uncompensated. Common examples of such practices include:
- Failing to compensate employees for time putting on and removing safety equipment
- Requiring employees to work “off the clock”
- Not paying employees for lunch or breaks even when the employee works during these periods
- Misclassifying employees as independent contractors or salaried (exempt) employees
If your employer uses these practices to avoid paying you wages for hours you have actually worked or otherwise does not pay overtime pay, you may have a right to bring a lawsuit for your unpaid overtime. Under both the Fair Standards Labor Act and New York law, an employee should receive 1.5 times the employee’s normal hourly wage if required to work more than 40 hours in a workweek.
Many employers either intentionally or inadvertently label employees as independent contractors (1099 employees) or salaried employees so that that they are not protected by the Fair Standards Labor Act and are not entitled to overtime pay despite the number of hours that they work. Determining whether an employee is actually exempt is not governed by the contract between and employer and employee but is based on job functions and compensation level. These cases are complex because there is no list of types of jobs that are exempt. These cases turn on their individual facts so it requires an employment attorney that is familiar with the many overtime cases that have been adjudicated.
The key factor is the type of job functions not one’s title. Those who hold positions with management responsibility or supervisory authority over other employees are more apt to be classified as exempt. The more responsibility and decision making authority the greater the probability that a person will be considered exempt. Professionals including physicians, lawyers and the like will also generally be considered exempt. Salespeople also typically are considered exempt.
The bottom line is that this determination can be very complex so it is essential to obtain legal advice from an experienced New York unpaid overtime attorney. If you have not been paid for time that you are required to be paid, you may be entitled to be paid for any unpaid overtime. If you face situations like those above or have otherwise not been compensated for overtime, our experienced New York employment law attorneys may be able to help you obtain the compensation that you deserve.
Attorney Louis Ginsberg has been representing employees in New York unpaid overtime disputes for over 22 years. Our firm is exclusively limited to handling employment law disputes so contact us today at 1-800-LOST-JOB so that we can evaluate your situation and advice you of your rights and options.