Denied Overtime? Told you're a "salaried employee" not entitled to overtime?

NY State law governs an employee's wages and hours - for example

, NY maintains a minimum wage requirement. Generally speaking, employees must be paid for any "work time" - time spent on an activity that is performed for the benefit of the employer. Although co-workers may be paid different amounts depending on their skills, education, and background, pay differentiation can not be based on a protected characteristic such as race, sex, or religion. If an employer violates the FLSA, a plaintiff employee is entitled to statutory damages, which include past wages, attorney fees, and liquidated damages.

The FLSA applies to "any individual employed by an employer" but not to independent contractors or volunteers because they are not considered "employees" under the FLSA. Still, an employer cannot simply exempt workers from the FLSA by calling them independent contractors, and many employers have illegally misclassified their workers as independent contractors. Some employers similarly mislabel employees as volunteers. Courts will look at the "economic reality" of the relationship between the putative employer and the worker to determine whether the worker is, in fact, an independent contractor. Courts use a similar test to determine whether a worker was concurrently employed by more than one person or entity; commonly referred to as "joint employers." For example, a farm worker may be considered jointly employed by a labor contractor who is in charge of recruitment, transportation, payroll, and keeping track of hours, and a grower who generally monitors the quality of the work performed, determines where to place workers, controls the volume of work available, has quality control requirements, and has the power to fire, discipline, or provide work instructions to workers.

While employers may take the position that you are a "salaried employee" and therefore not entitled to overtime, the "test" for whether or not you are entitled to overtime is the degree to which your employer exercises control over you as their employee. The simple fact that your employer calls you a "salaried employee" does not necessarily mean that your employer is exempt from being required to pay you overtime.

Top 10 Violations

1. Overtime Pay

Employers often pay the employees shift pay or a weekly salary and do not pay their workers for all overtime hours worked over 40 in a week.

2. Minimum Wage

Many employers ignore the requirement that they either pay their employees a straight $7.25 per hour (minimum wage) or $4.65 per hour if they take a "tip credit."

3. Spread-of-Hours Pay

Some companies frequently ignore the requirement that they provide their workers who earn minimum wage an extra hour of pay when their work day exceeds ten hours.

4. Training Pay

Employees are often not paid for the time they spend in training. If training is mandatory, then an employee must be paid at least minimum wage for this time. If the trainee does not receive tips during this time, he must be paid the full minimum wage of $7.25 per hour.

5. Uniform Maintenance

Some companies unlawfully require the employees to purchase and/or launder their uniforms without being repaid for these costs.

6. Management Stealing Tips

Owners and managers improperly take a share of the tips for themselves, even though New York law is clear that tips belong to the service staff only.

7. Misappropriation of "Service Charge"

Many businesses keep a fixed gratuity or "service charge" charged to customers, even though the customers are led to believe this is a tip that will be given to the employees.

8. Payment of Hourly Wages

Some companies don't pay any house pay and the employee works just for tips.

9. Charging for Customer Walkouts

Employees are often forced to use their tip money to pay the bill for customers who "dine and dash."

10. Breakage Charges

Many companies charge employees for breakage of equipment, plates or glassware by taking money out of their tips.

To find out whether you may have a claim against your employer, contact my Firm today.

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Denied Overtime? Told you're a "salaried employee" not entitled to overtime?

By: Michael J. Redenburg, Esq.

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