Unpaid overtime litigation across all of New York State
Unpaid overtime is a serious problem across New York and the entire United States. These cases make up a large part of federal district court dockets. The Fair Labor Standards Act gives courts jurisdiction over wage and hour claims.
Federal courts try to help both sides with early resolution. That applies to single party plaintiffs and to collective actions. These cases are time consuming and can be expensive to litigate. Litigation may involve massive discovery, motions, requests for admissions, interrogatories, potential experts and disputes over the most important evidence.
Most important evidence for an unpaid overtime case:
Documents are key for all types of employment law cases. But for unpaid overtime cases, they are critical. Federal courts know this. They force parties to exchange initial documents early in these cases. Defendants select key documents as do the plaintiffs. Once the parties dig in, disputes over document production can be fierce. Wage and hour claims are the ultimate “documents” cases.
Pay stubs can be confusing. This video explains why:
I’m Jonas Urba, a New York employment lawyer, here with Employment Law Reality Check. What are some signs that you might not have been paid all of the wages which you are owed; that you are owed some overtime pay? If your paystub doesn’t make any sense, if you can’t find your overtime hours, or your overtime pay rate, that’s a red flag. Secondly, how are you paid? Are you paid weekly, or every 2 weeks, or differently? If you are paid once a month that’s problematic. That could be an indication that your employer is violating the Wage Theft Prevention Act, which is designed to prevent employers from stealing wages from their workers. Or finally, maybe you are paid a salary when you should be paid hourly plus overtime. Many employees think that just because their employer has decided that they are salaried that they should automatically not be paid overtime. And that’s not true. It depends on what you actually do on the job. So if you filed a lawsuit in federal court, it’s expensive, it costs $400, so you should call some employment lawyers before doing that. Because liquidated damages means that you might be able to get, and in most cases you are entitled to get, double the amount that is owed to you. And you can go back to get up to 6 years. So if you think about how much money you may not have been paid, sometimes the unpaid overtime is better than any discrimination claim. I have potential clients who call me, insist that they have been discriminated, but often it turns out that the unpaid wages and unpaid overtime is the best and most sure way to get some recovery from your employer. Call some employment lawyers, call me. I’m Jonas Urba, I serve the entire state of New York, and I can be reached at (212) 731-4776. Attorney Advertising.
More mistakes employers make with pay:
- Changing an established regular workweek
- Split shift or spread of hours violations
- Requiring attendance during unpaid meal-break meetings
- Paying salaries to employees who lack hire-fire or policy deviation authority
1. Changing an established regular workweek:
Many employers pay bi-weekly or weekly. They inform employees that payday will occur every other Friday. Or maybe every Friday. That’s ok and it makes keeping track of hours easier. It’s also much closer in time to employees’ worked days. Employees are more likely to notify payroll of unpaid wages. Some employers even require signatures on timecards, electronic or otherwise. Employees verify that the timecard reflects all worked hours.
However, when employees are not easily able to calculate their owed wages, problems arise. An employer who pays monthly is most suspect. These employers sometimes fail to inform employees of the employer’s regular workweek. One month’s payday might occur on a Tuesday and the following month’s on a Friday. Unless timecards reflect when weeks start or conclude, this method of pay is suspect from the start. Employment lawyers are likely to dig deeper to uncover why the employer has chosen a confusing pay period.
Employers who attempt to substitute bonus pay for unpaid overtime are also suspect. Bonuses are, by definition, discretionary. Overtime pay is mandatory. Paying an employee discretionary pay when mandatory pay is due further confuses employees. These employers appear deceitful even before they attempt to defend themselves in federal court.
2. Split shift or spread-of-hours violations:
New York requires that employees whose shifts span more than 10 hours be paid for an extra hour of time at minimum wage. In January 2021 the hourly minimum wage across New York State is $12.50, Westchester County’s minimal hourly pay is $14.00, and New York City mandates a minimum of $15.00 per hour. These rates often change on December 31 of calendar years.
In order to avoid these penalties some employers prohibit employees from leaving their premises during meal periods. This practice can lead to employees performing labor during their meal breaks which must be uninterrupted. Employers who permit work during meal periods are subject to unpaid wages or unpaid overtime claims.
3. Requiring attendance during unpaid meal-break meetings:
For employees entitled to a 30-minute, uninterrupted meal break, work is prohibited during such times. In smaller offices, owners sometimes hold employee team-building or office staff meetings during lunch. These employers might buy lunch for everyone and believe that the cost or value of the lunch exceeds the hourly rates earned by their employees. That is irrelevant.
The practice of buying lunch for employees might be similar to giving employees year-end bonuses. The meal, as in the bonus, is completely discretionary and does not substitute for wages. Employers are prohibited from bartering personal property for wages as well. If an employee’s meal period is interrupted with work activity, such as answering a phone call, the employer must pay that employee for their meal period time.
4. Paying salaries to employees who lack hire-fire or policy deviation authority:
These claims tend to be the most challenging. Although most salaried employees are exempt, there are plenty of situations where they may not be exempt from overtime.
Last year, in 2020, the federal DOL amended the regulations which exempt salaried employees. New York State has not followed suit. It is unlikely that federal courts will follow the revised exemption definitions as well. Doing so would effectively make the exemptions meaningless as follows:
- Administrative Exemption. Under state law an employee’s primary duties are the performance of office or non-manual field work directly related to management policies or general operations. Under recently revised federal regulations “policies” have been removed. These employees do not have to “customarily and regularly” exercise discretion and independent judgment. The exemption has no meaning since almost any salaried employee could arguably be exempt and earn below the minimum wage.
- Executive Exemption. Under state law an employee must supervise two or more other employees, must have the authority to hire or fire other employees, and must customarily and regularly exercise discretionary powers. Under recently revised federal DOL regulations “authority” and “customarily and regularly” are removed. The exemption has no meaning since almost any salaried employee could arguably be exempt and earn below the minimum wage.
- Professional Exemption. Under state law professional employees have advanced knowledge in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study. It is distinguished from a general academic education, apprenticeship, or training in the performance of routine, mental, manual or physical processes. Under revised regulations the terms “general academic education, apprenticeship, or training” are removed. Adding “creative professionals” to the professional exemption demeans the exemption, arguably making any “creative” person a professional, exempt, and below minimum wage earnings acceptable.
Close to 60 YouTube videos have been posted by Urba Law PLLC at Employment Law Reality Check, linked here:
Call New York employment lawyer V. Jonas Urba at (212) 731-4776