New York Overtime Attorneys and Resources


Employers are required to provide overtime pay when an employee works more than 40 hours in one week, except for those employees who fit within one of the specific exemptions. Denying overtime pay is a form of wage theft.

Several laws govern overtime in New York state, including the federal Fair Labor Standards Act (FLSA) and New York State Labor Law (NYLL). Penalties include double the amount that should have been paid and up to $10,000 per year in fines. If you have been denied overtime pay, or you have been wrongly classified as an exempt employee, you may have a claim. A New York employment lawyer can help.


Almost All Employers Have To Pay Overtime

The overtime laws apply to employers whose annual sales total $500,000 or more, or those who are engaged in interstate commerce. This covers almost all employers because the courts have interpreted the term “interstate commerce” very broadly.

For example, courts have ruled that companies that regularly use the U.S. mail to send or receive letters to and from other states are engaged in interstate commerce. Even the fact that employees use company telephones or computers to place or accept interstate business calls or submit or take orders has subjected an employer to the overtime laws.

What Counts As Overtime

The law requires that employees must be paid one and a half times their regular rate of pay for all hours worked more than 40 hours in any given week.

You are not entitled to overtime pay simply because you work more hours in a single day than you usually work. Overtime is calculated based on the number of hours worked during a work week.

Overtime means more than 40 hours in a seven day workweek.

Overtime requirements apply on a workweek basis. Your workweek is a fixed and regularly recurring period of 168 hours––seven consecutive 24-hour periods. The workweek does not need to begin or end on any particular day of the week or begin at any particular hour of the day.  

For example, a bank might use a Monday through Sunday work week, while a retailer might use Saturday through Friday. However, it is illegal for employers to adjust the workweek in order to avoid paying employees overtime.

The law prohibits averaging hours worked in a two-week period.

Employers cannot take an average number of hours an employee worked in a two-week period to satisfy overtime laws, even if the standard pay period is two or more weeks.

For example, if you worked 50 hours last week but only 30 hours this week (an average of 40 hours per week), your employer still has to pay you for 10 hours of overtime at time and one half for last week.

Employers cannot pay a flat rate for 40 hours regardless of hours worked.

It is against the law for your employer to make an agreement with you that you will only be paid for 8 hours per day or 40 hours a week regardless of how many hours you actually work. The law considers such an agreement an illegal attempt by your employer to waive the overtime requirements.

Similarly, if your employer announces that no overtime work will be permitted, or that overtime work will not be paid for unless authorized in advance, your employer is still obligated to pay you overtime if you work more than 40 hours in a week regardless of whether or not it was “authorized.”

However, your employer is legally allowed to prohibit overtime and to terminate workers that violate the rule.

Ten Hour Workdays

New York law also requires employers to pay you an additional one hour of pay at the standard minimum wage if you work more than 10 hours in a single workday. This 10 hour spread includes any break or meal period that occur during the workday.

For example, if you reported to work at 8am, had an hour off for lunch, took two fifteen minute breaks, and left work at 6pm, you would be entitled to an extra hour of pay. This extra hour of pay does not count when you are calculating hours worked to see whether you are entitled to overtime.

Salaried Employees and Overtime

Salaried employees are also eligible for overtime unless they fit into one of the exceptions below.  Just because you are paid a salary rather than by the hour does not mean your employer can avoid paying you overtime.

However, there are a number of exemptions to the overtime rules.

Overtime Exemptions

Some employees are exempt from the overtime rules. The rest of this article will cover a number of exemptions based on pay and job duties.

Under current Department of Labor regulations, almost all employees who make $455 a week or less must receive overtime. However, New York has more generous overtime rules, which apply to employees making higher wages.

New York State Overtime Rules

NYC employers with 11 or more employees $825.00 per week

$975.00 per week or $50,700 per year on and after 12/31/17

NYC employers with 10 or fewer employees $787.50 per week

$900 per week or $46,800 per year after 12/31/17

Nassau, Suffolk, and Westchester counties $750.00 per week

$825.00 per week after 12/31/17

Remainder of New York State $727.50 per week

$780.00 per week after 12/31/17

Overtime rules can be confusing. Just because your employer states that you are exempt, the law may not agree. Determining exempt status is often obvious, but borderline cases can be  complicated. A New York employment lawyer can help protect your rights.

The Executive Exemption 

To qualify as an overtime-exempt executive, you must:

  • Direct the work of two or more full-time employees, manage other workers as your primary job duty, and have the authority to hire, fire, discipline, promote, and demote others or at least make recommendations about these decisions.

If your primary duty is management, you do not lose the exemption because you also choose to perform non-exempt work, such as cooking food, stocking shelves, cleaning, etc. Similarly, if you own at least 20% of a business, you are exempt only if you are “actively engaged” in management of that business.

Typically, there is only one “boss” of a department. If you only assist the manager and fill in for the manager as a supervisor only in his or her absence, you probably do not qualify for the exemption.

Some examples of positions that may fall within this exemption are:

  • Chief Executive Officers
  • Controllers
  • Department directors
  • Vice presidents

The Administrative Exemption

To qualify as an exempt administrative employee you must

  • Perform office or non-manual work directly related to business operations or management and primarily use your own discretion and judgment in your work duties as to matters of significance. The application of skills and knowledge in accordance with pre-established procedures is not considered to be the exercise of discretion and judgment.

Keep in mind that just because your decisions are occasionally revised or reversed after being reviewed does not mean that you do not fall within this exemption.

Some examples of positions that have been found to fall within the administrative exemption are:

  • Human resources managers
  • Payroll managers
  • Employees who work in the marketing or public relations departments
  • Insurance claims adjusters
  • Purchasing agents with the authority to bind the company on significant purchases
  • Employees acting as advisors or consultants to their employer’s clients or customers—such as tax experts or financial consultants

Some examples of positions have been found not to fall within the exemption are:

  • Bookkeepers
  • Loan officers
  • Ordinary inspection work performed under standardized instructions
  • Employees who work as graders, such as those who grade lumber, since they follow standardized instructions
  • Secretaries
  • Employees who answer phones
  • Employees who make travel arrangements
  • Employees who routinely order company supplies

The Professional Exemption

To qualify as an exempt professional, you must:

  • Do work requiring invention, imagination, originality, or talent in a recognized creative field, such as music, writing, acting, and the graphic arts

OR

  • Do work requiring advanced knowledge––work that is predominantly intellectual, requires a prolonged course of instruction, and requires the consistent exercise of discretion and judgment, such as law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, pharmacy, and various types of physical, chemical, and biological sciences.

Examples of “Learned Professions” include:

  • Doctors
  • Registered nurses
  • Dental hygienists
  • Accountants
  • Chefs
  • Funeral directors
  • Lawyers
  • Engineers
  • Pharmacists

Examples of “Creative Professionals” include:

  • Actors
  • Musicians
  • Composers
  • Conductors
  • Soloists
  • Fine artists
  • Cartoonists (who are told only the title or underlying concept of the cartoon)
  • Essayists
  • Novelists
  • Screenplay writers who choose their own subjects and hand in a finished piece of work
  • People holding “the more responsible writing positions in advertising agencies.”

Some examples of employees found not to fit within the professional exemption:

  • Copyists
  • Animators
  • Image retouchers

Unlike the federal law, New York’s professional employee exemption does not include a salary requirement. Also, doctors, lawyers, and teachers do not need to meet the minimum salary requirement to fit within this exemption even under the federal law.

Despite your advanced training and/or degree, you must actually be performing professionally exempt work. For example, a CPA who is doing ordinary bookkeeping is not exempt.

The Highly Compensated Employees Exemption

 To qualify as an exempt highly compensated employee, you must:

  • Perform office or non-manual work, be paid annual compensation of at least $100,000, which must include at least $455 per week paid on a salary or fee basis, and regularly perform at least one of the duties of an exempt executive, administrative, or professional employee as described above.

Outside Salespeople Exemption

To qualify as an outside salesperson, you must:

  • Regularly work away from your employer’s place of business, make sales or obtain orders or contracts for services or facilities and require little or no direct supervision. Generally, outside sales do not include sales by mail, telephone, or the internet.

The salary basis and salary requirements do NOT apply for the outside salesperson exemption, and employers of outside salespeople are not required to pay the minimum wage. Additionally, if you regularly work at a fixed location, including a home office, this is considered working at your employer’s place of business.

Promotional work that is in conjunction with you making sales is exempt work, but if you do the promotional work and someone else makes the sale, the promotional work is probably non-exempt.

While insides sales employees are typically eligible for overtime, they are exempt if they make half or more of their income from commissions.

Computer Employees Exemption

To qualify as an exempt computer employee, you must be a skilled worker in the computer field whose primary duties involve:

  • Applying systems analysis techniques and procedures—including consulting with users to determine hardware, software, or system functional specifications
  • Designing, developing, documenting, analyzing, creating, testing, or modifying computer systems or programs, including prototypes, based on and related to user or system design specifications
  • Designing, documenting, testing, creating, or modifying computer programs related to machine operating systems

Computer employees who perform a combination of these duties are also exempt.

Unlike the professional exemption, computer employees do not need to hold any particular degree or certification. The employee’s level of education is irrelevant when determining whether you fit within the computer professional exemption.

Computer employees must be compensated either on a salary or fee basis at a rate of not less than $455 per week, or if compensated on an hourly basis, at a rate not less than $27.63 an hour.

Some examples of computer professionals who are covered by the exemption include network or database analysts, software developers, computer programmers and software engineers.

The following types of computer employees are not covered by the exemption:

  • Manufacturing and repairing computer hardware
  • Installing, maintaining, and troubleshooting company software
  • Managing backup and archive (tape) libraries
  • Inputting data
  • Preparing operator instructions or computer operation performance diagrams
  • Running, fixing, or debugging computers
  • Staffing help desks

Finally, any employees working within predetermined specifications is most likely non-exempt.

Miscellaneous Workers Exemptions

Several other types of workers are typically exempt from the minimum wage and overtime pay provisions of the FLSA.

The most common include:

  • Employees of seasonal amusement or recreational businesses, such as ski resorts or county fairs
  • Employees of local newspapers having a circulation of less than 4,000
  • Seafarers on foreign vessels (although time spent loading and unloading cargo can result in large overtime claims)
  • Newspaper delivery people
  • Workers on small farms
  • Part-time personal companions and babysitters, but this exception does not include those who provide nursing care, or to personal and home care aides who perform a variety of domestic services
  • Taxicab drivers
  • Ministers and members of religious orders
  • Volunteers, learners, apprentices and students working in non-profit institutions
  • Students obtaining vocational experience

Common Exemption Problems 

The Department of Labor has tagged a number of problems that commonly come up relating to the exemption for executive, administrative, and professional workers. The top contenders include workplaces in which:

  • Salaried workers are docked for time missed due to illness.
  • Exempt employees with academic degrees perform exclusively unprofessional, unrelated work.
  • Acquired job skills are confused with the need to use independent judgment and discretion.
  • Salaried employees are all labeled exempt, without regard to actual work duties or the percentage of time spent on them.

If you believe you have wrongly been classified as an exempt employee, and thus been denied overtime, you may have a claim. A New York employment lawyer can help you recover double damages plus penalties.

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