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Common labor law questions in New York State

When am I owed overtime in New York?

In New York, the rules for overtime pay are primarily governed by the Fair Labor Standards Act (FLSA) and the New York State Labor Law. According to these laws, you are generally entitled to receive overtime pay when you work more than 40 hours in a workweek. The specific criteria for overtime eligibility in New York are as follows:

  • Non-Exempt Employees: If you are classified as a non-exempt employee, which includes most hourly workers, you are entitled to overtime pay. For every hour worked beyond 40 hours in a workweek, you should receive one and a half times your regular hourly rate as overtime compensation.
  • Exempt Employees: Certain employees are classified as exempt from overtime pay, such as those in executive, administrative, or professional positions who meet specific criteria. Exempt employees are generally not entitled to overtime pay, regardless of the number of hours worked.

Furthermore, New York State law provides additional protections for overtime pay. In some cases, state law may require employers to pay overtime for hours worked beyond eight hours in a day, even if the total for the week does not exceed 40 hours. However, the specific circumstances vary depending on the industry and the employer’s size, so it’s advisable to consult the New York State Department of Labor or an employment attorney for precise information regarding your situation.

What can I do if my employer owes me money in New York?

If your employer owes you money in New York, there are several steps you can take to address the situation and seek resolution. Here’s a general outline of the process:

  • Review employment contract and records: Start by reviewing your employment contract, pay stubs, and any other relevant documentation to ensure that your employer’s failure to pay you is indeed a violation.
  • Communicate with your employer: Reach out to your employer directly to discuss the issue and seek an explanation for the non-payment. It’s possible that there might be a misunderstanding or an administrative error.
  • Follow up in writing: If the initial conversation does not resolve the matter, send a formal written request to your employer, outlining the details of the unpaid wages, the dates of work performed, and any other relevant information. Request a response within a specific timeframe.
  • Consult the New York Department of Labor (NYDOL): If your employer remains unresponsive or refuses to pay, you can file a wage claim with the NYDOL. They have mechanisms in place to assist employees who are owed wages.
  • File a complaint: Visit the NYDOL website and file a wage claim with the Labor Standards Division. Provide all the necessary information, including your contact details, employment information, and details about the unpaid wages.
  • Investigation and resolution: The NYDOL will review your claim and initiate an investigation. They may request additional information from you and your employer. If the investigation finds in your favor, they will work towards resolving the issue, which may involve the payment of owed wages.
  • Seek legal advice: If your claim is not resolved through NYDOL or the amount owed is significant, you may want to consult an employment attorney. They can provide guidance on your rights, help you navigate the legal process, and represent you if the situation escalates.

Can I recover past unpaid wages or overtime in New York?

In New York, employees have the right to recover unpaid wages or overtime through various legal mechanisms. If you believe that your employer has not paid you the wages or overtime you are entitled to, you may be able to pursue a legal claim to recover those unpaid amounts. Here are a few options available to you:

  • File a complaint with the New York State Department of Labor (NYSDOL): You can file a complaint with the NYSDOL’s Division of Labor Standards to report your unpaid wages or overtime. The NYSDOL may investigate your claim and take action to recover the unpaid amounts on your behalf.
  • Initiate a lawsuit: You have the option to file a lawsuit against your employer in a court of law. In New York, the statute of limitations for unpaid wages is six years, while for overtime, it is three years. It’s important to consult with an employment attorney who specializes in wage and hour laws to assess the specific details of your case and understand the applicable time limits.
  • Class or collective action lawsuit: If multiple employees at your workplace have experienced similar unpaid wages or overtime violations, you may be able to pursue a class or collective action lawsuit. This allows a group of employees to join forces in seeking recovery for the unpaid amounts.
  • Consult an employment attorney: It is advisable to consult with an experienced employment attorney who can assess the specific circumstances of your case and guide you through the legal process. They can help you understand your rights, evaluate your options, and represent your interests in negotiations or litigation.

Do tips count as compensation in New York?

In New York, tips can be considered as part of an employee’s compensation. However, there are specific rules and regulations governing the treatment of tips under the New York labor law. Here are some key points to consider:

  • Minimum Wage: In New York, the minimum wage varies depending on factors such as the size of the employer and the location within the state. However, tipped employees are subject to a lower minimum wage called the “tip credit” rate. The tip credit allows employers to pay a lower base wage as long as the employee’s tips make up the difference to reach at least the regular minimum wage. If the tips do not meet or exceed the minimum wage, the employer is responsible for making up the difference.
  • Tip Pooling: In New York, tip pooling or sharing arrangements are allowed among employees who regularly receive tips. This means that tipped employees can pool their tips and distribute them among the staff, including back-of-the-house employees who do not usually receive direct tips. However, employers must follow specific rules regarding transparency and fair distribution of tips.
  • Reporting and Taxes: Employees who receive tips are required to report their tips to their employer for tax purposes. The employer is responsible for ensuring proper reporting and withholding taxes on reported tips. Failure to report tips accurately can have legal and financial consequences for both employees and employers.

Does it make a difference if my employer pays me by cash or check in New York?

Yes, there are differences between being paid in cash or by check in New York. The main distinction lies in the legal and practical aspects of each payment method. Here are some key points to consider:

  • Legality: Both cash and check payments are generally acceptable methods of wage payment in New York, as long as they meet certain requirements. However, there are specific regulations and guidelines that employers must follow for each payment method.
  • Reporting and Documentation: Cash payments can be more challenging to document and track accurately, especially if there is no paper trail or proper record-keeping. On the other hand, checks supply a written record of payment, including the amount, date, and recipient.
  • Taxes and Withholdings: Regardless of the payment method, employers must withhold income taxes, Social Security taxes, and Medicare taxes from your wages. However, cash payments may be more prone to underreporting or tax evasion if not properly documented.
  • Convenience and Accessibility: Cash payments supply immediate access to funds, allowing you to use them right away. However, checks can be deposited into a bank account, offering convenience for electronic transactions, bill payments, or saving purposes.
  • Security and Safety: Carrying substantial amounts of cash can pose a risk of theft or loss. With a check, you can deposit it into a bank account and have the funds secured, reducing the risk associated with cash handling.
  • Proof of Income: Checks supply a formal proof of income, which can be essential for various purposes like applying for loans, renting apartments, or verifying employment history. Cash payments might lack official documentation, which could be a drawback in certain situations.
  • Employer Policies: Employers may have their own policies about payment methods. They might prefer one method over the other for administrative or financial reasons. It’s important to comply with your employer’s policies and ensure they meet the legal requirements


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Scott Grauman, Attorney at Law, is the founder of Grauman Law P.C. and has a distinguished reputation for his fierce advocacy on behalf of his clients. Scott is an experienced litigator who regularly handles cases involving complex legal issues, providing a sophisticated and common-sense legal approach to clients facing real-life problems.

Scott is admitted to the State Bar of New York, New Jersey and Florida. He is also admitted to the Federal District Court of the Southern and Eastern Districts of New York.

Scott is a member of the American Bar Association (ABA), New York City Bar Association, Queens County Bar Association, National Association of Criminal Defense Lawyers (NACDL).

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