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Should I get paid for working unauthorized overtime hours? Wage and Hour FLSA Q&A Series

This is a first part in a regular series of Q&A’s for minimum wage and overtime questions commonly presented by employees.

Q. Am I entitled to be paid for working unauthorized overtime and when should I be paid for it?

Even if you perform work that was not requested, your employer must pay you for the overtime hours worked. The Fair Labor Standards Act (“FLSA”) provides that even if an employer announces that overtime work is not requested, the employer must still pay overtime wages to an employee who has performed overtime hours. Thumbnail image for Thumbnail image for Thumbnail image for above-the-bar-logo-no12.jpg For example, if a restaurant owner tells his staff to close up at 10 p.m and that overtime will not be paid, but the staff keeps it open an extra hour to allow its patrons to finish eating, the employees must be paid for that extra hour. In addition, if the employee’s total hours for the week exceed 40 hours, that extra hour must be paid in overtime wages.

You should be paid in the pay period in which the wages were earned. For example, if you worked overtime on Monday and you normally get paid for the “Monday” work on Friday, then your wages for the overtime work should be included in your Friday paycheck. According to New York State Labor Law, manual workers should be paid at least once a week, a commissioned salesman should be paid as agreed to by both parties but at least once a month, and other types of workers should be paid at least twice a month.

Both the New York State Labor Law and the FLSA provide for all covered non-exempt employees to be compensated 1 ½ times the regular rate of pay for all time worked in excess of 40 hours per week. Both the New York State and the Federal Minimum wage are $7.25 per hour. Certain employees, like tip earning employees are not required to be paid minimum wage as long as their combined pay and tip equal the minimum wage rate. An important difference between New York State law and the FLSA is that in New York, the statute of limitations to bring a wage and hour lawsuit is 6 years while under federal law, an employee has only 3 years at the most to bring a wage and hour lawsuit.

Q: If I am a secretary waiting for my boss to give me an assignment, am I entitled to get paid for waiting?

Generally speaking, you are entitled to be paid. For example, if you are a secretary and you are reading a book while you’re waiting for your boss to give you an assignment or if you are a filing clerk waiting for your employer to give you papers to file, such waiting time is considered work time and your employer must pay you for it. However, if your employer asks you to be on call and be ready to come to work when he calls you at home or at a place where you can be reached, then this waiting time is not considered to be work. If your boss asks you to be on call but places constraints or limits on how far you can be from your place of employment, then this waiting time might be considered work. An experienced employment law attorney can help you determine if you should be paid for time spent waiting.

In 2008, more than 197,000 employees collected a total of $140.2 million in minimum and overtime back wages because of FLSA violations. If you or someone you care about has experienced any type of wage and hour or overtime violation at the workplace, the New York Overtime Lawyers at Villanueva and Sanchala can help you recover your money. Call us now at (800) 893-9645 for a free initial telephone consultation.

Fact Sheet #16: Deductions From Wages for Uniforms and Other Facilities Under the
Fair Labor Standards Act, U.S. Department of Labor Fact Sheet #22: Hours Worked Under the FLSA, U.S. Department of Labor Fact Sheet #23: Overtime Pay Requirements of the FLSA, U.S. Department of Labor Employment Standards Administration Wage and Hour Division, U.S. Wage and Hour
Division, December 2008

Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced employment law attorney in your state or jurisdiction.

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