As of December 31, 2022, The New York Minimum Wage Act (the “Act”) requires that all employees working in the state receive at least $14.20 an hour or $15.00 an hour if they are in New York City, Long Island and Westchester. Under the Act, the minimum wage across New York state will increase every year until it reaches $15.00 an hour. The minimum wage increase has affected overtime rates, depending on unique provisions based on where a business operates and how many people it employs.
New York State calculates overtime using the time-and-a-half system. Unless otherwise exempt, employees receive an overtime rate of one-and-a-half times their regular rate of pay for all hours worked in excess of a 40-hour workweek. Further, some jobs are exempt from the federal Fair Labor Standards Act (FLSA) overtime requirements but are still entitled to an overtime rate of one-and-a-half times the state minimum wage under New York State Labor Law. By way of example, based on a $15.00 pay floor, time-and-a-half sets hourly overtime at $22.50.
The FLSA defines a 40-hour workweek as any seven consecutive workdays. The FLSA does not require overtime pay for working on weekends, holidays or regular days of rest, unless overtime is worked on those days.
New York Labor Law also requires certain employers to give their staff at least 24 hours of consecutive rest in any calendar week. Under Section 161 of the New York State Labor Law, employers who operate a restaurant, hotel, factory or mercantile establishment are a few examples of employers subject to this rule.
Understanding how a workweek is defined is essential to understanding overtime. A workweek is defined as seven consecutive 24-hour periods, or a fixed and regularly recurring period of 168 hours. Workweeks do not have to coincide with calendar weeks and may begin at any hour on any day. It is standard practice to pay any overtime earned in a workweek on the regular day for the pay period.
While employers can set the definition of a workweek at their discretion, they must do so with the intent to make it a fixed and regular measurement. Any attempt to alter the definition to avoid payment of due overtime is against the law.
The standard 40-hour week becomes 44 hours for New Yorkers classed as live-in or domestic workers. Domestic works are those who work in their employer’s home, performing duties such as cooking, child or elder care, or property maintenance (full-time nannies are included in this category, although part-time babysitters are exempt from overtime law).
The Department of Labor provides expanded definitions that address occasional domestic duties and all related rights for both resident and non-resident employees. Hotel and restaurant employees, building-services workers and non-profit employees are also subject to special overtime rules.
Taxi drivers, college students, outside salespeople, and camp counselors are all exempt from overtime law. As examples, the Executive Exemption applies to those who manage their place of work, a department of it, or two or more employees and exercise discretionary powers. The Administrative Exemption applies to employees whose primary duties are related to general operations or who regularly assist an executive-level employee.
The list of further exemptions is extensive and can be accessed via the Employment Law Handbook.
Hourly employees who do not work in any of the exempt roles mentioned above are typically eligible for overtime. Workers who receive a salary and usually work in excess of 40 hours a week are also usually eligible (depending on their duties and if they meet the salary threshold), and a Department of Labor decision in September 2019 added 1.3 million new eligible workers in a move that became effective on January 1, 2020.
Some jobs are covered for overtime at the federal level. In cases where an employee is subject to both the state and federal minimum wage laws, they are entitled to whichever is higher. These federally covered roles include firefighters, paramedics and police.
Nurses and paralegals are also covered due to their often long hours of work, and it is prohibited to mandate overtime for nurses who are protected under Section 167 of the Labor Law. The Department of Labor offers e-tools that provide further help and advice about overtime for employers and employees.
If you are an employee and you feel that your employer has committed a wage & hour violation, please contact us for assistance.