You work more than 40 hours per week, maybe as much as 72 hours. Your employer gives you a lump sum payment, maybe in cash, but if you add it up, you are not getting the overtime rate of time and one-half for each hour that you work over 40 hours. You must be paid for each hour of overtime that you work, and you must be paid one and one-half times your straight time rate for each hour of overtime worked, unless you are an exempt employee, such as a manager. Your employer cannot pay some of the overtime and not all of the overtime, or some of the overtime at straight time and some at a little more than straight time - it has to be all at one and one-half times your regular rate. And it does not make a difference if you are an undocumented worker.
In calculating your overtime pay, your employer must establish a work week. The same seven days every week. The employer cannot arbitrarily change when the workweek begins and ends, in order to deny you overtime. Nor can the calculation change if you work at different job assignments or work locations. It does not make a difference if your employer pays you weekly and calls you a salaried employee.
Your overtime rate is often, but not always, simple to calculate. You just divide your weekly pay by the number of hours worked in that week. This will establish your hourly rate. For example, if are paid $700 for a 60 hour workweek, then your regular rate of pay is $11.67, and your overtime rate is $17.50. For the 40 hours at the regular rate, you should be receiving $466.67, and for the 20 hours at the overtime rate, you should be receiving $350.00. Total weekly legal pay is then $816.67, and you are being underpaid by $116.67 per week. That adds up. Any regular weekly “bonus” must be included in this calculation. If your employer pays piece rates, day rates or commissions, the same method of calculation is used. If your employer takes permissible deductions for meals, the regular rate of pay must be calculated without including deductions. If you are not a member of a union, your employer cannot generally substitute comp time for required overtime payments. And your overtime payments must be paid on your regular payday, and cannot be delayed for longer than it would reasonably take your employer to calculate the amount of overtime that has to be paid.
You can speak up for your right to overtime payments in the workplace. Your New York State employer cannot discharge, threaten, penalize, or in any other manner discriminate or retaliate against you because you complain about not being paid overtime or have a reasonable belief that you should be getting overtime.
Contact us online or call us at (212) 949-1001 if you think that your employer's harmful actions stem from not paying you overtime wages, and we will use our more than 25 years of experience to help you resolve the matter by negotiation or by going to court in the State of New York or New York City.