The state of New York has its own overtime pay requirements besides those required by the Fair Labor Standards Act (FLSA), which is a federal law. Employers are required to provide most employees with overtime pay that is 1.5 times their regular rate of pay for all hours worked over 40 in a workweek.

There are some occupations which are exempt from overtime under the federal FLSA but workers in these occupations are still entitled to overtime under New York state law.

What are Some of the Differences in Overtime Pay Requirements?

Under state law, a residential employee is defined as any employee who lives in the home of their employer. Certain residential employees must receive overtime pay that is 1.5 times their regular rate of pay for all hours worked over 44 in a workweek.

Also, for occupations which are exempt from overtime under the FLSA but not under New York state law, there is a different overtime pay requirement. Workers in these occupations must be paid an overtime rate that is 1.5 times the state minimum wage, regardless of their regular rate of pay.

Also, an employment agreement or contract may allow for greater overtime payments than those required by state and federal law.

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What are the Occupations Which are Exempt?

There are some occupations which are exempt from the overtime pay provisions of both state and federal law. These 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; and/or
  • Individuals working for a fraternity, sorority, student or faculty association.

Who is Covered by the Overtime Requirements?

The state overtime laws apply to anyone 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 which are exempt from overtime laws.

State overtime laws do not cover federal, state and local government employers but 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?

An employee’s regular rate of pay 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 must be paid 1.5 times their regular rate of pay for all the overtime hours which they work. Certain payments are not part of the regular rate such as:

  • Pay for expenses which were incurred on the employer’s behalf;
  • Premium payments for overtime work;
  • Discretionary bonuses;
  • Payments made as gifts; and/or
  • Payments for occasional periods when no work is performed.

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

New York labor law does not require overtime pay for holiday, weekend or night work. However, there can be individual employment agreements or collective bargaining agreements which require increased or additional pay for holiday, weekend or night work.

In such cases, these agreements would be enforceable under state labor law. Also, employees cannot get overtime pay just because their employer asks them to work longer hours in a day than they generally work. This is because overtime is calculated based on the number of hours which are worked on a weekly basis.

Can the Right to Overtime Pay Be Waived?

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

Also, if an employer announces that no overtime work will be permitted or that overtime work will only be paid if authorized in advance, this still does not cancel the employer’s obligation to pay overtime to workers for the hours which they have worked.

Should I Contact a Lawyer?

If you are not receiving overtime pay which you are legally entitled to, 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 would also be quite useful to consult with an experienced New York employment law attorney before proceeding.