Law Articles

If you work as an hourly employee, you should be aware of the state and federal laws that mandate your employer pay you minimum wage and overtime wages. You could be entitled to back pay if your employer failed to pay you the wages you were legally entitled to.

Who is Entitled to Minimum Wage and Overtime Pay?

The Federal Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”) mandate that hourly employees receive minimum wage and overtime pay equal to one and a half times their normal pay rate. That your employer may categorize your employment as “salaried” is not determinative of whether you are entitled overtime wages. Rather, only salaried employees executive, administrative, and professional employees are exempt and not entitled to overtime wages.

How is Minimum Wage and Overtime Pay Determined?

Federally, the minimum wage is $7.25 per hour. However, in New York State, the minimum wage is $15.00 per hour and $10.00 per hour for tipped employees such as waiters and waitresses. Employers in New York must pay the New York minimum wage. When employees work more than forty hours in a work week, the employee is entitled to overtime pay at the rate of one and a half times their hourly pay rate.

If an employee is making the state minimum wage of $15.00 per hour, every hour they work of overtime must be paid at the rate of $22.50 per hour. A work week is a seven-day, 168-hour, period picked by the employer. The work week can be the calendar week of Sunday to Saturday, or it can be something else such as Wednesday to Tuesday. The work week picked by the employer must remain the same from week to week. Further, the employer is not allowed to average the hours worked per week to avoid overtime pay. This means that if an employee works 50 hours one week and 30 hours the next, they must be paid 10 hours of overtime pay. The employer cannot average the two weeks and pay the employee for two 40-hour work weeks.  

One way an employer may attempt to avoid paying overtime is by paying their employees cash at their hourly rate of pay (“straight pay”) for every hour worked over 40. This is not allowed. Employees are still entitled to their overtime pay and can receive back pay through litigation.

Penalties

If an employer has failed to pay employees minimum wage and overtime pay, there are certain penalties they must pay. The first is liquidated damages for underpayment. Liquidated damages means that for every dollar that the employer underpaid its employee, the employer will be liable for a dollar of liquidated damages. If an employee has been underpaid $12,000.00 for a year of employment, they will also be entitled to $12,000.00 in liquidated damages for a total of $24,000.00. Further, employees are also entitled to interest on the money their employer failed to pay them.

The FLSA also incentivizes attorneys to pursue these wage theft cases by allowing the plaintiffs-employees to recover attorneys’ fees if they prevail at trial. Most plaintiffs’ firms are paid by contingency fee, meaning there is no cost to the plaintiff-employee unless the firm recovers from the employer. However, plaintiffs’ firms still keep track of the time they spend working on the case and include the “cost” of litigating the case in the plaintiff-employee’s damages calculation.

Wage Notices and Wage Statements

In addition to minimum wage and overtime pay, employers are required to provide their employees with accurate wage notices and accurate wage statements. Samples of wage notices and wage statements are included below. A wage notice must be provided when a new employee is hired. The wage notice provides the employer’s information and describes how the employee is paid. The wage statement is included every time an employee is paid. The wage statement explains how the pay for the pay period was determined.

If an employer violates the requirements to provide wage notices and wage statements, the employee can seek monetary penalties from the employer of $50.00 per day up to $5,000.00. This means that if your employer failed to provide you with accurate wage notices and accurate wage statements, they could be liable to you for up to $10,000.00. The key word is “accurate.” If your employer has provided you with inaccurate wage notices and wage statements because they willfully underpaid you, they will be liable for the $50.00 per day penalty for each violation.

A sample wage notice and a sample wage statement are provided below.

Sample Wage Statement and Notice

If You Think You Are Owed Unpaid Wages

If you think your employer violated state and federal law by failing to pay you the proper minimum wage and overtime pay, you should contact an attorney immediately. At Pryor Law we specialize in FLSA underpayment litigation. Call us for a free consultation.