Minimum wage is currently $7.25 per hour under Federal Law and between $9.70 and $11.00 per hour under New York Law, depending on your employer and location, as of December 31, 2016. While there are limited exceptions to this requirement, most "employees" are entitled to the full minimum hourly rate and are also entitled to one-and-a-half times their hourly wages for each hour worked over forty (40) hours per week.
For example, if you are paid hourly, and your hourly rate is $14 per hour, your overtime rate is $21 per hour. If you are only paid straight time (your regular hourly wage) for all hours over forty (40) in a work week instead of time and one-half, you will be entitled to the difference between what you were paid for overtime hours worked and what you should have been paid. Many salaried employees are also entitled to overtime even though the companies they work for have misled them to believe that they are exempt, and not entitled to overtime pay.
Wage and hour violations can take many forms in addition to failure to pay minimum wage or overtime. For example, the law prohibits your employer from taking deductions from your pay that are not for your benefit. This means that if your employer is deducting money for mistakes, uniforms, chargebacks or disciplinary violations you may have a claim. You are entitled to be compensated for all hours worked even if you perform work "off the clock," before or after your shift. If you work more than ten (10) hours per day, you may be entitled to an extra hour of pay. It is unlawful for your employer to make deductions from your paycheck, even if you make a mistake.
Also, under the New York State Wage Theft Prevention Act, your employer must, at the end of each pay period, provide you with a statement showing your rate of pay, the basis for your rate of pay (whether hourly, salary, shift, day, week, piece, commission, and allowances); the amount of gross wages, wage deductions (if any) and the net wages paid. Failure to provide you with this statement is a violation of law and may entitle you to additional damages.
Certain types of employees are often paid incorrectly, due to the nature of the work they perform. Two such types of employees are restaurant workers and commissioned employees, such as salespeople and loan officers:
Employees hired to work in a restaurant are likely entitled to the full minimum wage of $10.50 to $11.00 per hour in NYC, $10.00 per hour in Westchester and Long Island, and $9.70 per hour throughout the rest of the State of New York. All hourly restaurant workers are likely entitled to time and one-half overtime for each hour worked over forty (40) hours per week. Even salaried restaurant workers, such as cooks, dishwashers, cashiers and hostesses are also entitled to time and one-half overtime for all hours worked over forty (40) hours per week. Please be aware that it is unlawful for management and back of the house employees such as cooks and dishwashers to receive any portion of tips, gratuities or a service charge. Employers may not charge restaurant employees for customer walkouts or breakages. Also, employers may be required to reimburse you for the cost of your uniform and cleaning charges. All restaurant employees are entitled to "spread of hours" pay, or an additional hour of minimum wage for working either over 10 hours per day or a split-shift.
As of December 31, 2016, all fast food workers in NYC are entitled to a minimum wage of $12.00, which will increase to $13.50 on December 31, 2017. Fast food workers in New York (outside of NYC) are entitled to a minimum wage of $10.75 as of December 31, 2016, which will increase to $11.75 on December 31, 2017.
Restaurant workers who work at catering halls, country clubs or locations where private events are held are commonly paid incorrectly. For example, if the catering hall, country club or restaurant charges a 20% service charge or gratuity, those funds should be paid in their entirety to the service staff. It is likely illegal for the company to retain any of those service charges or gratuities. Employees must be aware that they can file a claim for these violations dating back 6 years under the New York Labor Law.
Commissioned employees are entitled to minimum wage for all periods that they do not earn a commission and most commissioned employees are also entitled to time and one-half overtime for all hours worked over forty (40) hours per week. New York employers must provide employees with a commission agreement that is in writing and signed. When you leave your company, you are generally entitled to your earned commissions from all customers that have paid your employer. Examples of commissioned employees who are not paid properly include loan officers, underwriters, car salespeople, account executives and salespeople who work inside an office.
All workers in New York are protected by both the New York Labor Law and the federal Fair Labor Standards Act (FLSA). Violations of wage and hours laws may result in the award of liquidated damages and double damages under each of these acts. New York State allows employees to seek recovery of unpaid wages dating back six (6) years.
If your employer has committed any of the unlawful acts discussed above, you may have a claim for unpaid wages. The New York City wage and hour lawyers at Fitapelli & Schaffer have recovered millions of dollars in unpaid wages for their clients, and are currently litigating against some of the largest and most well-known companies in the world. In today's uncertain economy, it is unfortunate that, whether accidental or intentional, many employers violate Federal or New York wage laws. If you believe that your employer may not be compensating you properly, feel free to contact us for a free consultation.
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