Workers in the
War on Wage Theft
Wage theft is rampant in the United States. The New York overtime lawyers at the Marlborough Law Firm fight for workers cheated out of overtime pay on Long Island and in NYC. In recent years, we have recovered more than $20 million in cases involving overtime claims under state and federal law.
The federal Fair Labor Standards Act of 1938 (“FLSA”) and New York State Labor Law (“NYLL”) protect the rights of most workers. These include the right to receive premium pay when working more than forty hours in a workweek. For those extra hours, the proper wage rate is one and one-half times the employee’s regular hourly rate.
For example, an employee paid $20 per hour for regular hours, may be entitled to $30 per hour when working more than forty hours in a workweek, unless she is exempt from overtime.
Employers often misclassify employees as “exempt” from overtime to avoid paying them overtime. Some employees, like executives and true management-level employees, are exempt from overtime protection under certain circumstances. However, most employees are not exempt under the law.
Most exemptions require that an employee be paid a regular salary, but that is only half of the story. An employee is not exempt merely because they are paid a salary. The job responsibilities must satisfy the strict statutory requirements for that legal exemption. Non-exempt workers are still entitled to time and a half, even if they are paid a salary. Our NY Overtime lawyers are experienced in identifying workers misclassified as exempt employees.
Employers often claim that a worker is not entitled to overtime (“OT) pay because they are independent contractors. True independent contractors do not receive OT and minimum wage protection. However, many workers are misclassified as independent contractors when they are actually employees under the law. Just because a worker is paid on a 1099 does not mean that they are true independent contractors.
As a condition of employment, many employers will force their employees to sign independent contractor agreements that limit the worker’s rights under the law. However, the conduct is no less illegal. We have have successfully challenged unenforceable independent contractor agreements and had them invalidated by the court.
Some employers simply refuse to pay OT, without regard to their legal obligations. They will either pay for extra hours at the regular hourly rate or pay nothing at all for those hours. Both of these practices violate federal and state laws.
The employer, not the employee is responsible for making sure that time records are detailed and accurate. Manipulating how time is recorded is a common method of avoiding the payment of overtime. The three most common forms of recordkeeping fraud are:
Restaurant workers and other tipped employees are often victims of wage theft. Under New York and federal law, workers are entitled to keep their tips.
In addition, non-exempt workers who are paid on a salary basis are still entitled to overtime premium pay when working more than forty hours. This includes both non-tipped workers (including dishwashers, cooks and other workers) and tipped workers (including servers, bussers, and counterworkers).
When an employee chooses to take a tip credit against the minimum wage, they often double dip on the tip credit for overtime hours. The overtime rate for tipped workers can be no less than one and one-half times the full minimum wage rate minus the tip credit. See here for more information about restaurant worker scams.
If you think you may be a victim of wage theft, contact us for a free consultation.