New York Wage and Overtime Law
Most employers must pay overtime pay for every hour of overtime an employee works in New York, unless the employee is exempt. To figure out if you are entitled to overtime pay for your work in New York, these are the questions you need answers to:
- Is your employer covered by federal or state overtime pay laws?
- Are you eligible for overtime pay under federal or state overtime pay laws?
- Are you exempt from overtime pay laws?
- How does New York regulate overtime pay? and,
- What is the overtime pay rate in New York?
The federal Fair Labor Standards Act (FLSA) requires most employers to pay employees 1-1/2 times their regular hourly wage for every hour worked over 40 hours in a workweek, unless the employee is exempt from overtime pay entitlement. So, if you are eligible, you should be paid your regular hourly wage plus 50% of that wage as premium pay for each overtime hour worked.
Most states have their own overtime laws, too, which apply to people working in the state. However, the FLSA sets the minimum standard for overtime pay. So, if a state’s overtime law is less protective of employees, the FLSA standard will be applied to people working in that state.
Is My Employer Required to Pay Overtime?
Virtually all employers, even very small ones, are covered by the FLSA overtime requirements. Every employer that uses interstate mail, relies on interstate phone or internet communications, or sends goods from one state to another is covered. Even if your employer is not covered by the FLSA, it may have to pay you overtime under the wage and hour laws of New York. If you are not sure whether your employer is covered by the FLSA, contact the New York State Department of Labor.
Even if your employer is covered by the FLSA, you may not be entitled to overtime pay. A particular employee’s entitlement to overtime depends on the state’s wage and hour laws, the employee’s duties, and the number of hours the employee worked.
Am I Entitled to be Paid Overtime?
Assuming your employer is covered by the FLSA, you are entitled to premium pay for overtime unless you fall into one of the exceptions, or “exemptions,” to eligibility. And, keep in mind that you may be covered by the overtime laws of New York, along with any exemptions under those laws.
Eligibility Exception 1: “White Collar” Employees
This exception covers executive, administrative, or professional employees so it is sometimes called the “white-collar” exception. It applies to employees who are:
- paid a salary (as opposed to pay per hour worked);
- paid at least $455 per week; and,
- in executive, administrative, or professional positions.
Your primary duty determines whether or not you fall into one of the white-collar exceptions. The primary duty of an “executive” employee is management of the employer’s business, which must include regularly supervising two or more full-time employees. An executive employee also either has the authority to hire and fire other employees, or great weight is given to their recommendations on those decisions.
The primary duty of an “administrative” employee is office (that is, nonmanual) work directly related to management or business operations of the employer. An administrative employee exercises discretion and independent judgment about significant matters in the office.
The primary duty of a “professional” employee requires one of two accomplishments: 1) advanced knowledge (usually gained through lengthy formal education) in a field of science or learning, or 2) invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor.
For more information about these exemptions, check the U.S. Department of Labor (DOL) Overtime Fact Sheet.
Eligibility Exception 2: Outside Salespeople, Contractors, Volunteers, and Other Employees
People employed in certain other types of work are also exempt from overtime pay eligibility. These include outside salespeople, independent contractors, computer systems analysts, farm workers, seasonal or recreational workers (such as ski lift operators), casual babysitters, and a few other categories. For more information on exempt employee categories, check the DOL Overtime Fact Sheet.
New York Overtime Hours Standard
The New York State Department of Labor can give you New York’s overtime standards. Check with New York State Department of Labor to find out if you are eligible for overtime and the overtime rate (usually 1-1/2 times your regular pay) to calculate how much you may be owed.
If you work more than 40 hours in a workweek, your employer must pay you 1-1/2 times your regular hourly wage for each overtime hour you work under New York overtime rules, unless you are exempt. Exemptions are different under New York law than under the federal overtime standard. If you are a "live-in" (residential) employee, your employer must pay you 1-1/2 times your regular hourly wage for each overtime hour you work over 44 hours in a workweek.
How Much Overtime Am I Owed?
To calculate your overtime pay, take the overtime rate (1.5 times your regular hourly rate under the FLSA) and multiply it by the overtime hours you worked. Be sure to include all amounts you earn as compensation for your work (wages, performance bonuses, commissions, prizes, and shift differential pay) to determine your regular hourly rate.
Overtime wage law is complex and it can be difficult to determine if you are covered by it. You may want to talk to a wage and hour lawyer. To find a lawyer, go to How Can I Find a Wage and Hour Lawyer in New York?