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Common Questions About Overtime & Unpaid Wage Claims

MINIMUM WAGE AND OVERTIME

Q. What is the minimum wage?
   
A. The current federal minimum wage is $7.25 per hour and the current minimum wage in New York is $8.00. If the minimum wage under either law goes up, you generally are entitled to the highest of the 2 minimum wage rates. Recently enacted legislation in New York will raise the minimum wage as follows: to $8.75 on or after December 31, 2014; and to $9.00 on or after December 31, 2015.
   
Q. Am I entitled to overtime pay?
   
A. The law recognizes two types or categories of employees: exempt and non-exempt. Some employees are not legally entitled to overtime because of their job duties and the way and amount they are paid. These employees are "exempt" from the laws regarding overtime pay. Examples of individuals who may be Exempt are executive, professional and administrative employees (including teachers and academic administrative personnel in elementary and secondary schools), outside sales employees, certain skilled computer professionals and casual babysitters. Non-exempt employees are those whose job duties do not fit within any of the exemptions under the labor laws and are, therefore, entitled to overtime pay.
   
Q. Am I an exempt employee just because I am paid a weekly salary?
   
A. The manner in which you are paid does not, by itself, determine whether you are exempt from, or entitled to overtime pay. And that’s true even if you were told that you would be paid a certain salary regardless of how much you work.
   
Q. When should I be paid "overtime?"
   
A. In most cases, a non-exempt employee is entitled to be paid overtime for all work time actually worked in excess of 40 hours in a workweek.
   
Q. What does “actually worked” mean?
   
A. It means work time the way it is defined above, but does not include such non-work time as holiday, sick or personal day, vacation or any other time when an employee is not performing services for the employer. So, if you work 8 hours on Monday, Tuesday, Friday and Saturday, but were out sick from work on Wednesday and Thursday, you only worked 32 hours in that week - even if you were paid for 48 hours including the 2 sick days.
   
Q. What is a workweek?
   
A. The term "workweek" means a period of 168 hours during a 7 consecutive day, 24- hour period. A workweek can begin on any day of the week chosen by the employer, and each workweek stands alone; therefore, an employer generally cannot average 2 or more workweeks when calculating overtime. If an employee works more than 40 hours in any 1 workweek, regardless of how many hours were worked in the prior or following workweek, they are entitled to overtime pay for those hours.

Example: With a few exceptions for special classes of workers, if you work 60 hours in one workweek and then 20 hours the following workweek, you are entitled to 20 hours of overtime pay for the first workweek, even though the average for the two week period is 40 hours per week.

   
Q. What is my overtime rate of pay?
   
A. Except for a few, limited exceptions, your overtime rate of pay is 1 ½ times your regular hourly rate of pay.

Examples: If your regular hourly rate of pay is $10.00, your overtime rate of pay is $15.00.

If you work for the same employer at 2 different jobs but at 2 different hourly rates, your regular hourly rate of pay will be an average of the different rates.

   
Q. What if I am paid a weekly salary?
   
A. If an employee’s regular pay is not expressed as an "hourly" rate, their regular pay rate must be converted to an hourly equivalent. If you are paid a weekly salary, your regular hourly rate is determined by dividing the weekly salary by the number of hours for which the salary is intended to compensate.
   
Q. Other than my regular pay, should any other payments I receive such as bonuses be taken into account when calculating my overtime rate?
   
A. Generally, yes, unless payment of your bonus or incentive pay is completely discretionary on the part of your employer. If such payments are tied to achieving certain pre-set benchmarks or performance standards or goals, such payments generally are not consider to be “wholly discretionary” and should be
included in determining your regular rate of pay for overtime purposes.

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