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FAQ

Wage and Hour Laws

The laws that protect people against wage theft and other wage & hour violations are often quite complicated, and it can be difficult to understand your rights. Below, we offer some guidance on frequently asked questions. However, keep in mind that this guidance is not exhaustive, and it is best to have an attorney help you understand your rights given your particular situation. Beranbaum Menken has a long track record of protecting people’s rights under federal and local wage theft laws. If you believe you are owed wages or your rights have been violated, contact us to schedule a consultation.

Please keep in mind that different states and some cities have different wage & hour laws. These guidelines are based on the laws applicable in New York State. There are also many exceptions to the guidelines below, with some employees earning greater or less protection.

What is the minimum wage?

As of July 24, 2009, the minimum wage in New York State is $7.25 per hour. Employers are required to pay most workers in New York State at least the minimum wage, although there are exceptions for full time students, youth under age 20, agricultural workers, and employees who earn tipsNew York law makes no exceptions to the minimum wage requirements for undocumented workers, workers paid in cash, or workers working “off the books.” New York’s minimum wage rules are explained in this poster which all employers are required to post conspicuously at the job site. Some workers are entitled to more than the minimum wage, such as those workers protected by New York’s prevailing wage law, New York City living wage law, or a collective bargaining agreement or other binding contract.

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What is the minimum wage for tipped employees?

Employees earning tips are still entitled to earn the minimum wage. However, employers are allowed to take a “tip credit” from your wages, meaning that the employer doesn’t need to pay you the full minimum wage. However, employers can only take this “tip credit” so long as they tell you they are taking this credit and they pay you at least $5.00 an hour in the food services industry and $5.56 in other service industries. If your tips plus your $5/hour wages don’t add up to $7.25/hour, your employer must make up the difference. Here is the full text of the New York minimum wage order for the hospitality industry. Tipped employees are also entitled to earn overtime at the employee’s regular rate of pay.

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What are the rules for overtime?

Most employees in New York are entitled to be paid one and one half times their regular “straight-time” wage for all hours worked over 40 in one work week. For example, if you work 50 hours in a week, and you normally receive $10 per hour, you should calculate how much you are owed that week as follows:

40 hours x $10 = $400 straight time pay

10 hours of overtime x 1.5 x $10 = $150 overtime pay

TOTAL:    $550   

That means the higher your regular straight-pay rate, the higher your overtime rate. There are exceptions to New York and federal overtime laws. For example, people who are exempt from federal overtime laws are also generally exempt from New York’s overtime laws. A list of federal overtime exemptions can be found here. The laws on exemptions can be quite confusing. If you are unsure of whether your employer has properly classified you as exempt from overtime laws, contact us to schedule a consultation.

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Am I an employee or an independent contractor?

It is not unusual for employers to misclassify employees as independent contractors. After all, doing so allows them to pay lower taxes and benefits, avoid paying the minimum wage and overtime, avoid paying workers compensation, unemployment insurance, or to provide many other workplace protections.

Luckily, the employer does not simply get to decide based on its own preferences who is or is not an independent contractor. The question is determined by a set of factors laid out by the IRS here.

Essentially, if your employer controls when, where and how you work, you are an employee, not an independent contractor, and that means that you are entitled to all the same wage & hour protections as other employees, regardless of what kind of tax form your employer issues you.

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How many hours can an employer ask an employee to work?

There are no limits on the number of work hours per day and employer can require.

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Does my employer have to pay me for my travel time?

If your employer makes you travel after arriving at work, you should be paid for that travel time. However, employers generally do not need to pay an employee for the time spent getting to and from the workplace.

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Does my employer have to pay me for time spent waiting at the job?

Some jobs require people to stand around and, essentially, wait. For example, some jobs require people to undergo extensive searches before they are allowed to leave the premises, or requires them to arrive at work at 9:30, say, but does not allow the employee to actually begin working until a supervisor has come by and checked them in. Even though employees are not performing any work during these times, the employer is still required to pay them for this time so long as the employer is the one requiring them to be at the workplace during this time and does not allow them to leave.

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What can an employer lawfully deduct from my pay?

An employer in New York cannot withhold your wages (make deductions from them) unless a court ordered your employer to make deductions (for child support, for example) or unless you give your employer an authorization in writing to make deductions for a lawful purpose (like contributions to a 401(k)). Your employer cannot make deductions form your pay to cover damage you might have caused at work or to cover a slowdown in business (unless you are receiving a bona fide pay cut, which cannot fall below the minimum wage).

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Am I entitled to meal periods or “breaks”?

Most people are. Employees in New York who work shifts of more than 6 hours, starting before 11:00 am and continuing until 2:00 pm must have an uninterrupted lunch period of at least 30 minutes. Meal periods do not count as work time, so employers do not have to pay wages for that time.

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Does my employer have to pay me for holidays, sick time and/or vacations?

Most workers are not presently entitled by law to paid sick leave or holiday leave unless the employer has established a policy promising such pay. A new law, slated to take effect on April 1, 2014, would require some employers in New York City to provide some paid sick leave for employees with a serious medial condition.

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If I complain about a violation of wage & hour laws, can I be fired?

New York law protects employees from retaliation for making complaints or inquiries concerning their rights under wage & hour laws, or for filing a legal action based on wage violations.

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What should I do if I think I am being improperly paid?

You can consult an attorney or make a complaint to the New York State Department of Labor.

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How long do I have to bring an action in court for unpaid wages?

You have six years under New York law to bring an action for unpaid wages, and two or three years (depending on whether the wage violation was “willful”) under federal law. Keep in mind that the clock is ticking – if you were unpaid from 2000-2010, then as of 2013 you are only entitled to your unpaid wages from 2007-2010 under New York law, because you are entitled only to back wages that are owed to you within the past six years. 

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What happens if I win an action for unpaid wages in court?

You will be awarded your back wages (including overtime or unlawful deductions or tip credits taken) and attorneys fees. You may also be awarded “liquidated damages,” meaning you may end up with twice your actual wages owed. Wage and hour laws can be confusing, and there are exceptions to many of the guidelines mentioned above. Beranbaum Menken has a long track record of vindicating people’s rights to be paid fairly under the law, in both individual cases and large class actions. If you think you are owed back wages or that your employer is violating your rights, contact Beranbaum Menken to schedule a consultation.

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