You May Be Entitled to Overtime, Even If You Are Paid a Salary
Many people believe that they are not entitled to overtime pay if they are paid a salary. Some people also believe that they are not entitled to overtime just because they are given a “manager” or “assistant manager” title, or if they are called an “independent contractor.”
It is not that simple.
Your right to overtime compensation depends on how much regular compensation you are paid, what education and skills are required to do your job, how much independence you have when doing your job, and what type of work you actually perform for your employer.
The law says that you must be paid overtime – at the rate of one and one-half times your regular rate of pay – for all the hours you work over 40 per week, unless your employer can prove that you are “exempt” from the overtime requirements.
This means that you may be entitled to overtime, even if you are paid a salary or are called an “independent contractor.” And if your employer fails to pay overtime compensation, you may be entitled to two times the amount of overtime you are owed.
Common Jobs With Overtime
Here are just a few of the jobs where employers try to cheat workers out of their rights to overtime compensation:
- Restaurant Workers including waiters, bussers, hosts, cooks, and dishwashers
- LPNs, Home Health Aides, PT Assistants and other types of healthcare workers
- Construction Workers including on both private and public projects
- Retail, Fast Food, and Grocery Store Workers even if they are called “managers” or “assistant managers”
- IT Help Desk Employees
- Exotic Dancers
- Local Delivery Drivers and Couriers
- Employees Misclassified as “Independent Contractors”
Overtime Pay Exemptions
How do you know if you should be paid one and one-half times your regular rate of pay according to New York overtime laws? As a general rule, you are entitled to overtime unless you fall within one of the following exemptions.
The Compensation Exemption
If you work in New York and earn more than $1,125.00 per week in regular compensation, then you are probably not entitled to overtime.
“Regular” compensation means the amount you are paid by your employer for a 40-hour workweek. It does not include compensation for more than 40 hours per week or tips left by customers.
The Administrative Exemption
Some administrative and management employees are “exempt” from the overtime requirements, even if they earn less than $1,125.00 per week.
Your job title alone does not determine if you are an administrative or management employee.
You fall within this exemption only if (a) you perform office or non-manual work, AND (b) that work is directly related to the management or general business operations of your employer or its customers. Your primary duties must also involve the exercise of discretion and independent judgment with respect to significant matters.
If you do not have the authority to make important decisions on your own, then you may not be an administrative or management employee for purposes of being paid overtime.
The Professional Exemption
Professionals and other skilled occupations that require licenses or advanced degrees are usually exempt from overtime laws. This includes doctors, lawyers, engineers, and accountants.
The mere fact that you are licensed as a professional or hold an advanced degree does not automatically exempt you from overtime laws. You must actually need to use your professional skills or advanced education to do your job.
For example, Registered Nurses (RNs) are usually considered “exempt” from overtime laws, but Licensed Practical Nurses (LPNs) are not. If you are licensed as an RN but are performing the duties of an LPN, then you may be entitled to overtime compensation.
The Independent Contractor Exception
Many employers try to avoid paying overtime – and some employers try to avoid paying the minimum wage – by calling you an “independent contractor.”
When deciding whether you are an independent contractor or an employee, courts look at the totality of the circumstances. Here are some of the circumstances that suggest you are an employee and should be paid overtime compensation:
- the work you do is an integral part of the employer’s business
- your relationship is either permanent or likely to continue for the indefinite future
- the employer provides all the facilities and equipment that you use
- the employer controls what you do and when you do it
- you do not have the opportunity to make a profit by controlling how you work
If this sounds like you, then you are probably an employee entitled to be paid overtime compensation when you work more than 40 hours per week.
How to Get Paid the Overtime Compensation You Are Owed
At The Howley Law Firm, we begin with a conversation. We will talk with you about where you work, what type of work you do, and how you are paid. We will review any documents you may have, such as paystubs or other payroll records, time records, tip reports, and job descriptions.
There is no charge for this initial consultation. It can be done over the phone, by videoconference, or in person.
We will tell you whether you have a case and, if so, what your options are.
If you have a strong case, we will represent you on a contingency fee basis. This means that we will not be paid any attorneys’ fees unless you win. In most cases, the court will order your employer to pay our attorneys’ fees in addition to the amount of unpaid overtime and liquidated damages the employer will have to pay to you.
Our team is standing by to assist you with your case. We are familiar with New York overtime laws and we will work tirelessly to get you fair compensation. To get started, call us at 212-601-2728 to schedule a free and confidential consultation.