What Is the New York Law for Overtime?
The Fair Labor Standards Act (FLSA) governs the federal overtime laws; though, some states set their own overtime laws. The state of New York follows FLSA overtime guidelines to some extent, but has its own requirements for resident and nonresident employees. The New York State Department of Labor administrates the state's overtime laws.
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General Rule
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New York employees who work overtime should receive overtime pay at one and one-half times their regular pay rate. This rule applies to nonresidential employees who work more than 40 hours for the payroll week and live-in (residential) employees who work more than 44 hours for the week. The employee does not receive overtime pay for working weekends or nights, or for work hours exceeding eight per day, unless it causes them to incur overtime.
Exemptions
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New York follows federal law's exempt requirements. An employee who meets FLSA exempt criteria does not receive overtime pay. The most common exclusions include interstate drivers, commissioned sales employees, farm workers, loaders and mechanics and administrative, professional and executive employees. The employer should consult the United States Department of Labor, Wage and Hour Division for clarification on which employees are exempt to ensure proper payment. Employees who are not exempt should receive overtime payment for overtime hours.
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Tipped Employees
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Service employees who frequently receive tips, such as servers, bartenders and bellboys are entitled to overtime if they work more than 40 hours for the week. The employer pays the employee direct hourly wages and takes a tip credit so the hourly wages and tips combined can equal at least the minimum wage. If it doesn't, the employer pays the worker the difference. To figure overtime for tipped employees, the employer multiplies the regular pay rate (which can be no less than the minimum wage) by 1.5 and then subtracts the tip credit. The result is the overtime pay rate.
Considerations
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In many cases, a New York employer can request mandatory overtime, but must pay the extra work hours at the employee's overtime rate. Health care employers cannot mandate nurses to work overtime, except if an exception applies, such as a health care disaster that increases the need for health care workers. If an employer does not pay overtime wages, the employee should ask for payment. If the employer refuses to pay, the employee can recover lost wages by filing a wage claim with the New York Department of Labor.
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