How Do You Fight Back Against Wage and Hour Violations in New York?
Wage and hour violations are an overall concept that mainly covers unpaid overtime and unpaid minimum wage.
The federal minimum wage has been only $7.25 an hour since 2009. High unemployment and eventually COVID-19 have been concerns that members of Congress have cited in refusing to raise the wage. In 2021, an amendment to a COVID-19 relief bill to raise the federal minimum wage to $15 an hour failed, largely on party lines, in the Senate. Another failed proposal would have raised the federal minimum wage to $10 in a few years,
New York has a $14.20 minimum wage. That’s up from $13.20 in recent months. There are proposals in the New York legislature to raise the minimum wage at the state level to keep up with high inflation, which is sometimes about 10% per year. Housing, health care, education, and fuel inflation are even higher.
New York City, Long Island, and Westchester County have a higher minimum wage of $15 per hour.
Both federal and New York rules require employers to pay workers time and a half, or overtime. At the federal level, after a worker logs 40 hours in a week, the employer has to pay at least time-and-a-half to covered, nonexempt employees. The FLSA also covers comp time or compensatory time off, where covered, nonexempt state and local government employees get time off for hours over 40 in a week.
In New York state overtime pay of $21.30 to $22.50 per hour (it is $22.50 in NYC, etc.) must be paid to nonexempt employees for covered hours over 40 per week.
Working Off the Clock
Some employers try to evade their obligations relating to overtime or minimum pay by asking employees to work time off the clock. Although they may think the employee can give up their legal rights by agreeing to this, the law does not always work this way. Other employers may not remember or keep proper records so they end up paying based on the wrong total hours worked or the wrong allocation of hours across days worked, for example shifting overtime hours into the next week.
Lawyers have an important role to play in getting workers paid for time not put on the payroll at the right rate of pay (hourly rate). The Fair Labor Standards Act (FLSA) as well as the New York State Labor Law and numerous regulations guarantee workers the proper overtime and minimum pay. While employees can seek to protect their own rights without a lawyer, lawyers can, among other things, help workers band together so most of them do not need to take an active role in enforcing their rights. Class action litigation is an efficient, less costly way of obtaining compensation for common violations.
Employees may file a lawsuit, whether as a group or not, as a collective or class in federal or state court. Often these lawsuits obtain back wages and additional (liquidated) damages for employees. In addition to any wages or penalties obtained, an employee may get reasonable attorney and court fees paid by an employer who violates the wage and hour laws.
Misclassification to Deny Overtime Pay
Other times, workers may not get their overtime pay because their employer says they are on salary. There are exemptions from overtime pay for some managers, as well as people like doctors or lawyers who receive professional training, and certain administrator, people in computer-related jobs, and some domestic service employees working in private homes (not for a third party service contractor).
For example, in one case in which Aldi allegedly misclassified its store managers as “exempt” employees who did not have to be paid overtime under federal and New York state law, it was publicly reported that Aldi agreed to pay millions of dollars to store managers who were working up to 20 or more hours over 40 a week for an average pay of about $80,000 before overtime.
Just because a worker has assistant manager or office administrator in their job title does not mean that overtime is not required. A lawyer may be able to investigate whether the actual job duties of an employee and co-employees in similar roles involve work that creates a right to overtime pay, despite a job title that may include manager, technology, computers, or administrative in it. The inquiry may be fact-intensive and may require some time in court, sometimes with employees participating as a group.
Missing Tips or Tip Records
Employers in New York City, Long Island, etc. have to make sure that their employees do not fall below $15 an hour unless they are exempt from minimum wage, and even if they are tipped employees. In addition, tipped employees may be entitled to overtime pay depending on role and hours worked.
It is the employer’s job among other thing to make sure that customers’ failure to leave adequate tips does not deny a service employee below the overall minimum wage of $15 (in the City or L.I., etc.). Both supervisors and owners of businesses are may violate applicable laws by requesting or taking any tip left for an employee, or pocketing or demanding an employee hand over any part of a customer payment listed or intended as a tip.
So, assume that a member of the wait staff was paid a cash wage of $10 per hour in New York City. Then she earned an average of $4 per hour in tips. For every hour over 40 hours per week, the employer would owe her an additional $8.50 per hour. Moreover, on any day she worked more than 20% of her shift, or more than two hours of her shift, the employer would owe her a cash wage of $22.50 per hour for every hour over 40 per week, and a cash wage of $15 for the rest of the hours on those days. Additionally, for any week that she earned less than $3.25 per hour in tips ($8.40 on average in a resort hotel job), she would be owed a cash wage of $15/hour and $22.50 over 40 hours.
The tipping system also does not justify not paying minimum wage to fast food employees, who are treated more like factory workers. Workers, like waiters, bartenders, bellhops, maids, and other hotel or restaurant workers may receive a cash minimum wage payment that is reduced by up to $4.75 – or $5 in the City, Long Island, and Westchester – which added to the cash minimum wage equals $14.20 to $15. Other workers who might receive tips are barbers and hairdressers in salons, most nail salon or facial/eyebrow/eyelash workers, golf or tennis instructors, car wash or valet parking attendants, and doorpersons. Under federal law, employers may pay tipped workers $2.13 an hour in cash wages, only if the employees receive at least $5.12 an hour in tips as a tip credit.
Tipped workers at hotels, banquet halls, conference and convention centers, party or dance halls, wedding halls, and other facilities where food is served may have claims for unpaid tips.
If you have been told to work off the clock, received wrongful tip deductions or are missing tips, or have been misclassified as to your overtime or minimum wage, you may benefit from a free consultation to make sure you are being fully and correctly compensated for the hours you work.