Workplace Discrimination
& Employment Law

Your employer is required to give you a written statement showing you how much your hourly pay is, and he is supposed to sign it and keep it for 6 years. If you do not receive pay based on an hourly rate, your regular rate must be converted into an hourly rate, called a regular rate of pay (RRP). If there is no clear understanding between you and your employer as to what your hourly rate is, and you work over 40 hours per week, you probably have an overtime violation that you can sue for. If there is no clear understanding about what your hourly rate of pay is, your Regular Rate of Pay (RRP) will calculated according to both New York state and federal regulations. A simple example of this is illustrated below.

Under both state and federal law, the overtime rate is one and one half times your regular rate of pay per hour, or RRP. It is not that complicated. For example, if you work 6 days a week, ten hours a day, and earn $600 per week, your regular rate of pay (RRP) i calculated as follows:

Weekly Pay = $600 ÷ 60 hours per week = $10 per hour (RRP) × 1.5 = $15.00 per hour (Overtime Rate)
Note that this calculation will be different for tipped employees.

The calculation of the amounts due for unpaid overtime change quite a bit in each case, even for different employees within the same company. These calculations should normally be done on Excel spreadsheets, because many times the numbers we input into these calculations will change and we want to be able to “tweak” them without doing the whole thing over. However, to take a very simple example, assume the same employee as the example above has been working 60 hours per week at $600 per week for the 4 years before the filing date of the complaint.

Hourly Overtime (OT) Rate – (Calculated Above) = 15.00 Less RRP (Also Calculated Above) $10 = Hourly OT Deficiency = $5.00

OT Hrs/Wk = 20 × Hourly OT Deficiency = $5.00 = Weekly OT Deficiency = $100

Number of Weeks Worked (4 Yrs x 52 Weeks) = 208 Weeks x Weekly OT Deficiency = $100 = $20,800

Plus Liquidated Damages at 100% = $20,800 × 2 = $41,600

In addition to this, sometimes we can get both state and federal liquidated damages and New York State interest at 9% from a logical midpoint. Both the federal and New York state statutes provide for the employee’s attorney’s fees to be paid by the employer, and the federal statute also provides that the employer has to pay the costs, like filing fees, investigators bills, and court reporter’s charges if the employee is successful in recovering unpaid overtime in the case.

Under both state and federal law, employers are responsible for documenting the work hours and pay of all employees. They are required to keep accurate and complete records and to keep them. Employees who do not report their overtime work to their employer are still entitled to the overtime wages earned, but if the employer has a plausible claim that the employee specifically did not clock in or out after being repeatedly told to do so, this can sometimes create problems in the case. However, if none of the employees ever clock in or out because they are always paid the same amount no matter how many hours they work each week, and the employer has allowed this to go on for long periods of time, this puts the employer in the position of not having kept records at all. This example is the same as if the employer had never installed the punch clock, because what is the point of a punch clock if the employees are not told to use it. This result follows because the employer has control over the workplace – this means the employer has the right to tell the employees what to do, and has the right to fire them if they do not comply.

If you are paid according to a piece rate, your regular rate is calculated by dividing the total weekly earnings by the total hours you worked. For any work in excess of 40 hours, you are entitled to overtime at one and one half times your regular hourly rate.

If you are a salaried worker, your regular pay rate is calculated by dividing your salary by the number of hours for which you were compensated. Again, for any work in excess of 40 hours, you are entitled to overtime at one and one half times your regular hourly rate.

Unfortunately, employees who are exempt under federal law are usually exempt under New York state law as well, because many times the state exemptions are keyed to the federal ones, but not always. For example, live in domestic workers are protected under New York state law, even though they are exempt employees under federal law.

No. Many employers call their employees independent contractors to avoid paying them overtime and other benefits, and to save money on payroll taxes, unemployment insurance, worker’s compensation. This is called misclassification. If your employer maintains a high degree of control over you, you are probably an employee, and entitled to the benefits an employee gets, regardless of what the employer thinks or says. For example, if you have to be at the employer’s premises according to a set schedule, and you have no control over when or where you are going to work, you are probably an employee. If you have a lot of freedom as to when you want to work and when you don’t, you are probably an independent contractor. The greater the level of control your employer exercises over you, the more likely you are to be an employee. Whether you are an employee or an independent contractor is a legal conclusion that will often be determined after a lawsuit or after a hearing before some type of agency.

Federal law seeks to protect employees from wage and hour abuses, but the law does not cover every employee in all situations. Qualified employees are treated differently from independent contractors with regard to overtime wages. People who are, in fact, independent contractors are not entitled to overtime pay under the NY Labor Law or under the FLSA.

Many state and federal agencies are very upset about the number of employees who are being misclassified as independent contractors, primarily because this costs them tax payroll tax revenue and numerous other fees. Many employers who misclassify their employees as independent contractors will be highly motivated to settle employee’s claims with their attorneys because they wish to avoid attention that may lead to audits by the Wage and Hour and Unemployment Divisions of the New York State Department of Labor, the State Insurance Fund, and many other others. Very commonly, when one of these agencies makes a misclassification finding against an employer, they do cross-notifications to the other agencies, creating a cascade of expensive problems for the offending employer. Many employers are very anxious to avoid scenarios like this.

Most workers are allowed at least thirty (30) minutes for a noon meal under the New York Labor Law. Every person employed in or in connection with a factory is allowed at least sixty (60) minutes for the noon meal.

The noon meal period is recognized as extending from eleven o’clock in the morning to two o’clock in the afternoon.

An employer does not have to pay you for holidays, sick time or vacation under New York law, unless an established workplace policy, custom or contract requires it. Nor is the employer required to pay time and half for nights, weekends, or holidays, unless the total hours for that week exceed 40 hours.

If an employer pays you for holiday, sick time or vacation time, the employer can unilaterally impose its own conditions on the benefits, but the employer may not provide those benefits in a discriminatory or retaliatory manner or in a manner that otherwise violates federal, state or local law.

You only have a limited amount of time to file your claims relating to your employment under the federal and state laws. The time limit is known as the statute of limitations.

Under the federal law, you can only sue for overtime you should have been paid within the two years before your complaint was filed in court. However, if the employer’s violation is proven to be willful, this statute of limitations period is extended to three years. An employer’s violation is willful if it knew that its conduct violated the law, showed a reckless disregard as to whether its behavior violated the law or has a prior history of violating the law.

No. Filing a complaint with the Department of Labor, whether it is the Federal DOL or the NYS DOL, does not “stop the clock” on the running of the statute of limitations. Many people assume that because they filed with the DOL, that their time to sue is not running out – THIS IS NOT CORRECT. If you filed an overtime complaint with the DOL three years ago, it is now too late for you to sue that employer in federal court because that time has now run out. The fact that you thought that it was going to be settled, or that this meant the employer knee about does not matter.

Yes, but there are two things you must remember. i) You will have to drop your DOL claim before filing the overtime lawsuit based on the same facts, and we will be happy to do that for you, because you cannot have both proceedings pending against the same employer at the same time; you have to pick one of them. ii) Even if the statute of limitation to sue has not yet run out, whatever time is now gone because the statute of limitations has run out is now lost, and cannot be recovered. This usually means that the employee will have lost some, but not all of the claim. Remember that where the employee is no longer working for the defendant employer, the right to sue for one more week of overtime is lost with each week that goes by before the complaint is filed in court.