The Fair Labor Standards Act (FLSA) is a law which provides guidelines for pay requirements for overtime work. In most instances, when an employer allows or requires an employee to work overtime, the employer is required to pay that employee for their overtime work.

An employee who is covered under the FLSA is required to receive overtime pay for any hours they worked in excess of the 40 hour workweek. The FLSA does not require employers to pay overtime pay for hours which are worked on weekends or holidays.

The FLSA does not provide a limit on the number of hours an employee is to work during a workweek. The hours in a workweek may be different for certain employees or groups of employees.

The requirement to pay overtime cannot be waived by an agreement between an employer and an employee. Additionally, employers are not permitted to block employees from working overtime.

Employers also cannot require an advanced authorization for any overtime work. Employers are prohibited from refusing to pay for work which is completed as overtime if it falls under the FLSA.

An employee has the right to be compensated for hours which they have worked. Overtime pay must be calculated based on the average hourly rate which is derived from the earnings during the workweek.

Earnings may be based on:

  • A salary;
  • Commission; or
  • A piece-rate.

Which Employees are Exempt from Receiving Overtime Pay?

If an employer falls under the FLSA or the local overtime laws of the state, all of the employees are entitled to overtime pay unless an exception applies. The following is a list of workers who are exempt and are therefore, not permitted to receive overtime:

  • White collar jobs who are paid on salary, including:
    • executives;
    • administrative professionals; and
    • professionals;
  • Independent contractors;
  • Volunteer workers;
  • Outside sales personnel;
  • Certain computer specialists;
  • Workers of amusement parks or county fairs;
  • Employees of organized camps or religious conference centers;
  • Employees of certain small newspaper;
  • Newspaper deliverers;
  • Workers in fishing operations;
  • Babysitters; and
  • Criminal investigators.

What are Overtime Pay Laws in New York?

New York state has its own overtime pay requirements in addition to those which are required by the Fair Labor Standards Act. An employer is required to provide the majority of employees with overtime pay at a rate of 1.5 times their regular rate of pay for all hours worked over 40 hours in a workweek.

As previously noted, there are certain occupations which are exempt from overtime pursuant to the FLSA. However, workers in these occupations are still entitled to overtime pursuant to the laws in New York state.

What are Some of the Differences in Overtime Pay Requirements?

Pursuant to state laws, residential employees are defined as employees who reside in the home of their employer. There are certain residential employees who are required to receive overtime pay which is at a rate of 1.5 times their regular rate of pay for all hours that are worked over 44 hours in a work week.

In addition, for occupations that are exempt from overtime purposes to the FLSA but not under New York state laws, a different overtime pay requirement exists. Workers who are in these occupations are required to be paid an overtime rate which is 1.5 times the state minimum wage, regardless of their regular rate of pay.

In addition, employment agreements or contracts may allow for a higher amount of overtime payments than those which are required by state and federal law. The following LegalMatch articles can provide more information:

What are the Occupations Which are Exempt?

There are certain occupations which are exempt from both the overtime provisions of state law and the overtime provisions of federal law, which include:

  • Executive, administrative and professional employees;
  • Individuals working in a government job, whether:
    • municipal;
    • state; or
    • federal;
  • Outside salespeople;
  • Farm laborers;
  • Certain volunteers, interns and apprentices;
  • Taxicab drivers; or
  • Individuals working for:
    • a fraternity;
    • sorority;
    • student; or
    • faculty association.

Who is Covered by the Overtime Requirements?

The state overtime laws apply to any individual who is defined as an employee. An employee is defined as “any individual employed or permitted to work by an employer in any occupation” other than the occupations that are exempt from overtime laws.

State overtime laws do not cover local, state, and federal government employers. However, they do cover:

  • Charter schools;
  • Private schools;
  • Not-for-profit corporations; and
  • Non-teachers who work for school districts.

What is a Regular Rate of Pay?

The regular rate of pay for an employee is the amount that the employee is paid regularly for each hour of work. The regular rate of pay cannot be less than the minimum wage and employees are required to be paid at a rate of 1.5 times their regular rate of pay for all of the overtime hours which they work.

Certain payments are not part of the regular rate, including:

  • Pay for expenses which were incurred on the employer’s behalf;
  • Premium payments for overtime work;
  • Discretionary bonuses;
  • Payments made as gifts; or
  • Payments for occasional periods when the worker does not perform any work.

What about for Holiday, Weekend or Night Work or for Longer Than Usual Workdays?

New York labor laws do not require overtime pay for:

  • Holiday work;
  • Weekend work; or
  • Night work.

There can, however, be individual employment agreements or collective bargaining agreements which require increased or additional pay for holiday, weekend or night work. In these cases, the agreements would be enforceable under state labor laws.

In addition, employees are not permitted to obtain overtime pay simply because their employer asks them to work longer hours in a day than they usually work. This is due to the fact that overtime is calculated based upon the number of hours which are worked on a weekly basis.

Can the Right to Overtime Pay be Waived?

An employee is not permitted to waive their right to overtime pay. For example, if the employee attempts to reach an agreement with their employer to count only 8 hours a day or only 40 hours a week as their working time, this will be considered an illegal attempt to avoid the overtime pay requirements which are mandated by law.

In addition, if an employer announces that overtime work will not be permitted or that overtime work will only be paid when it is authorized in advance, the employer is still obligated to pay overtime to workers for the hours which they have already worked.

Are There any Defenses to Overtime Violations?

Yes, there may be some available defenses to an overtime violation. One of the more common defenses presented by employers is that the employee is exempt from overtime pay requirements as provided by the FLSA.

However, even if the employee is exempt, they may be able to recover on a breach of contract claim if overtime pay is a requirement pursuant to the policies of the company. Another defense which may be available is the good faith defense.

If an employer was honestly unaware that the affected employee was due overtime pay or was not exempt from overtime pay may be forgiven for their ignorance. In the future, though, the employer will be required to pay overtime wages correctly and when they are due.

Should I Contact a Lawyer?

If you are legally entitled to receive overtime pay and are not receiving it in the state of New York, you can file a complaint with the Labor Standards Division of the New York State Department of Labor or the New York Attorney General’s Labor Bureau. It may also be helpful to consult with a New York employment law attorney who can assist you with your complaint as well as with filing a complaint in court, if necessary.