Wage and Hour/Overtime

Understanding Wage and Hour Disputes

Wage and hour disputes are a significant concern for employees, particularly in New York, where thousands of workers face wage theft and unfair payment practices each year. This article aims to provide clear, detailed information about wage and hour disputes. By understanding your rights and the common types of wage violations, you can better decide whether to seek legal assistance to recover what you are owed.

The Scope of Wage Theft in New York

Wage theft is a widespread issue, affecting many industries across New York State. From 2017 to 2021, federal and state investigators found over 13,000 cases of wage theft, revealing more than $203 million stolen from approximately 127,000 workers. However, these figures likely underestimate the true extent of the problem. For instance, the U.S. Department of Labor estimated that New York employers steal up to $1 billion annually from workers when unreported wages are taken into consideration.

The restaurant industry is notably the worst offender, accounting for over $52 million in wage theft, more than 25% of all reported cases. Other industries significantly impacted include healthcare ($28.4 million), construction ($27.6 million), janitorial services and retail stores ($5.9 million each), and supermarkets and convenience stores ($5.8 million).

Despite federal and state efforts, advocates argue that existing measures are insufficient to curb wage theft effectively. They stress the importance of legal assistance to navigate the complex web of federal and state wage laws and to hold employers accountable.

Common Wage Violations

Wage and hour disputes can arise from various forms of employer misconduct. Below are the most common types of wage violations:

Minimum Wage Violations

Under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL), employers must pay at least the minimum wage. The minimum wage varies by region within New York. Currently the state minimum wage is:

New York City, Long Island, and Westchester: $16 per hour
Rest of New York State: $15 per hour

Violations occur in several ways:

Off-the-Clock Work: Employers may require employees to perform tasks before clocking in or after clocking out, effectively reducing their hourly wage below the minimum.
Improper Payment Structures: Paying a day rate or shift rate that averages out to less than the minimum wage for all hours worked.
Restaurant Employee Wage Violations: Employers can pay tipped workers less than the minimum wage if they make up the difference in tips so long as the employee has been given the necessary written notice of this practice and the employee spends at least 80% of their shift performing tipped work. However, violations occur when employers do not provide the proper notification of their tipped worker practice or when tipped employees spend significant time (two hours or 20% of their shift) on non-tipped duties such as side work.

Overtime Violations

Both federal and New York laws require non-exempt employees to receive 1.5 times their regular pay for hours worked beyond 40 in a week. Common violations include:

Misclassification: Employers might classify workers as exempt from overtime pay when they do not meet the legal criteria for exemption, such as performing primarily executive, administrative, or professional duties.
Unrecorded Overtime: Employers may not track or pay for overtime hours, sometimes expecting employees to work “off the clock.”
Day Rate or Shift Rate Pay: Paying employees a flat rate per day or shift regardless of the number of hours worked after their expected shift ends.

Hourly Compensation Violations

Employees working double shifts or more than ten consecutive hours in a day are entitled to additional pay under New York law. Violations include:

Spread of Hours Pay: Employees who work more than ten hours in a day are entitled to an extra hour of pay at the minimum wage rate, regardless of their regular hourly wage. Employers often overlook this requirement.
Failing to Pay for All Hours Worked: Requiring employees to work through unpaid breaks or not compensating for preparatory or concluding activities related to their work.

Misclassification of Workers

Employers may misclassify employees to avoid paying overtime and other benefits. Common misclassification issues include:

Salaried vs. Hourly Employees: Salaried employees are entitled to overtime unless they meet specific criteria regarding job duties and salary thresholds set forth in the Fair Labor Standards Act and New York law. Misclassification can lead to significant unpaid overtime.
Independent Contractors: Misclassifying employees as independent contractors to sidestep wage laws. Independent contractors do not receive overtime pay, benefits, or other employee protections, which can lead to substantial underpayment. This type of misclassification is particularly a problem for workers in the administrative and computer technology fields.

Timely Payment of Wages

New York law mandates that “manual workers” be paid their salary weekly as opposed to bi-weekly or any other timetable greater than every seven days. “Manual workers” include all types of employees who spend more than 25% of their workday performing physical tasks. Violations include:

Delayed Payments: Employers fail to adhere to the weekly payment requirement, causing financial strain on workers who depend on timely wages. Employees who do manual work and are not paid weekly may be entitled to recover substantial damages.

Examples of positions that New York state courts have ruled were positions that fall into the “manual worker” category are restaurant workers, hairdressers, retail store workers, grocery store workers, janitors, cooks, home care workers, to name just a few. Every position requires an analysis of the actual worked performed and title is not enough to make the determination.

Unpaid Commissions

Workers reliant on commissions, whether employees or contractors, must receive timely payments. Violations include:

Delayed or Denied Commissions: Employers withholding or delaying commission payments beyond the agreed-upon timeframes, affecting the worker’s expected income. State and local laws in New York protect such workers by requiring the timely payment of commissions.

Determining If You Have a Claim

If you suspect your employer has not paid you fully, you may have grounds for a wage claim. Possible claims include:

Unpaid Minimum Wage: If your average hourly earnings fall below the minimum wage due to off-the-clock work or improper payment structures.
Denied Break Time: Not allowing legally mandated breaks or failing to compensate for break times that must be paid.
Off-the-Clock Work: Requiring tasks outside of recorded hours without compensation.
Time Spent on Work-Related Tasks: Not paying for time spent on preparatory or concluding activities, such as putting on/taking off uniforms or equipment.
Unpaid Overtime: Not paying the required 1.5 times regular pay for hours worked over 40 in a week.
Work-Related Travel Time: Not compensating for travel time during the workday or specific travel to and from work as required by state law.

These claims often involve detailed analysis of wage stubs, timesheets, and employment records. Legal assistance is crucial to determine whether an employer’s actions violate state or federal laws.

How an Employment Lawyer Can Help

An experienced employment lawyer can provide invaluable assistance by:

Assessing Violations: Determining if your employer has violated wage laws and explaining your rights.
Presenting Options: Discussing options to challenge illegal conduct, including filing complaints with government agencies and/or pursuing private lawsuits.
Evaluating Claims: Assessing the potential success and value of your claims, including possible damages and penalties.
Navigating Complex Laws: Understanding the interplay of federal and state laws to ensure all applicable claims are pursued.
Representing You: Providing representation in negotiations, hearings, or court proceedings.

Legal counsel is essential as employers typically have their own lawyers. By consulting with an attorney, you can ensure you are adequately represented and informed about your rights and potential compensation.

Get Help from an Experienced Employment Law Attorney

New Yorkers work hard to support themselves and their families, but wage theft and unfair payment practices can undermine their efforts. Federal, New York State, and New York City laws are designed to protect workers, but navigating these laws can be complex.

If you believe you have been a victim of wage theft or other wage and hour violations, consulting an employment lawyer is a critical step. The employment lawyers at Harding, Mazzotti, LLP can help you understand your rights, evaluate your claims, and pursue the compensation you deserve.

Seeking legal assistance can make the difference in recovering lost wages and holding employers accountable. Don’t hesitate to reach out to us to discuss your situation and explore your options for legal recourse.

Contact the Employment Law Attorneys at Harding Mazzotti, LLP today!

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