The first step is to review your rights under federal law. The Fair Labor Standards Act (FLSA) requires employers throughout the country to pay their employees one and one-half times their regular pay for all hours worked over 40 hours in a workweek. This does not have to coincide with a calendar week, it can begin on any day, but it must include seven consecutive 24-hour periods of time.
The FLSA does not allow an employer to average the hours worked over two weeks. Each week is its own, separate work week subject to the 40-hour requirement before the FLSA triggers the need for overtime pay. The employer and employee cannot enter into a contract that waives the right to overtime pay.
Step 2: State rights
Additional regulations likely apply at the state level. New York state law also requires one and half times an employee’s regular hourly rate for all hours over a 40-hour payroll week. One area the state does differ involves minimum wage — which directly impacts the hourly overtime payment.
New York state has set up a scheduled increase with the ultimate goal of reaching $15 per hour minimum wage rate. Employees in both large and small businesses in New York City should already receive this rate, and effective December 31, 2021, those in Long Island and Westchester as well. The remainder of the state will go up to $13.20 per hour on December 31, 2021, with future increases to be determined by the state. It is also important to note that this wage rate is set at $10 for tipped wages.
Step 3: Additional information
There is often a statute of limitations, or time limit, on when workers can bring forward this type of a claim. In most cases, workers can file a claim up to two years after the time period that the employer failed to provide proper payment, though the time could be longer under state law. There are also certain types of employees that are considered exempt. Because of these and other rules that impact these claims, it is a good idea to review the situation with an attorney knowledgeable in this area to discuss your options.