Unpaid Minimum wage / Overtime

STATE LAW EXEMPTIONS

Please note that some state wage laws include exemptions that are even more pro-employee than the FLSA exemptions. For example, under the New York Labor Law executive and administrative exemptions, employees must be paid a minimum weekly salary depending on the size and location of the employer, as follows:

  • New York City:

    • Large Employers (11 or more employees, or fast food workers): $975 per week ($1,125 per week on and after December 31, 2018);

    • Small Employer (10 or fewer employees): $900 per week ($1,012.50 per week on and after December 31, 2018; $1,125 per week on and after December 31, 2019).

 

  • Long Island and Westchester:

    • $825 per week ($900 per week on and after December 31, 2018; $975 per week on or after December 31, 2019; $1,050 per week on and after December 31, 2020; $1,125 per week on and after December 31, 2021).

 

  • Remainder of New York State:

    • $780 per week ($832 per week on and after December 31, 2018; $885 per week on and after December 31, 2019; $937.50 per week on and after December 31 2020). 

If your employer classifies you as an exempt employee but pays you less than the above rates in New York, call Pelton Graham today to discuss your legal rights.

 info@peltongraham.com or calling our offices at (212) 385-9700 or toll free at (888) 975-5997.

Pelton Graham is a leading firm that specializes in representing plaintiffs in unpaid minimum wage and overtime litigation. Our firm has brought dozens of claims on behalf of individual employees and classes of employees to recover the unpaid overtime due to hardworking current and former employees. Our attorneys have successfully resolved claims brought on behalf of employees in the automobile, banking & financial services, construction, delivery, grocery store, home health services, hospitality, manufacturing, medical, restaurant & bar, retail, security, technology, and telecommunications industries. The firm is currently representing employees of several renowned coffee shops, fast food restaurants and other restaurants in seeking unpaid minimum wage and overtime. 

The Fair Labor Standards Act (“FLSA”) establishes minimum wage, overtime pay, record-keeping, and child labor standards affecting full-time and part-time workers in the private sector and in federal, state, and local governments. Covered non-exempt employees are entitled to receive minimum wage plus overtime compensation at a rate of not less than one and one-half times the regular pay rate for hours worked in excess of 40 per workweek. The minimum wage required by federal law is $7.25 per hour. In New York State, however, the minimum wage is higher depending on the size and location of the employer, as follows:

  • New York City:

    • Large Employers (11 or more employees, or fast food workers): $13 per hour ($15 per hour on and after December 31, 2018);

    • Small Employer (10 or fewer employees): $12 per hour ($13 per hour on and after December 31, 2018; $15 per hour on and after December 31, 2019).

 

  • Long Island and Westchester:

    • $11 per hour ($12 per hour on and after December 31, 2018; $13 per hour on and after December 31, 2019; $14 per hour on and after December 31, 2020; $15 per hour on and after December 31, 2021)

 

  • Remainder of New York State:

    • $10.40 per hour ($11.10 per hour on and after December 31, 2018; $11.80 per hour on and after December 31, 2019; $12.50 per hour on and after December 31, 2020). 

 

Employees who regularly receive “tips” may be paid a lower wage but must earn at least the minimum wage through combined tips and wages. Employers are not permitted to take deductions from an employee’s wages or require an employee to pay for certain business expenses if such deductions or expenses effectively reduce the employee’s wages below the minimum wage or overtime requirements. In addition, New York State is extremely specific about the types of deductions that employers may take from an employee’s wages.

Unpaid Gratuities

Many employees, most notably the hundreds of thousands of waiters, busboys and food runners across the country, receive the bulk of their compensation in the form of tips or mandatory service charges applied to customers. In light of that, it is vital for employers to follow specific laws pertaining to tipped employees. First of all, no matter how much an employee receives in tips, the employer must also pay the minimum hourly wage. Many states, including New York, allow employers to “take the tip credit,” lowering the minimum wage by a set percentage. 

In New York, the minimum wage for tipped employees who are service employees or food service workers are as follows:

  • Service Employees: 

    • New York City Large Employers (11 or more employees): $10.85 per hour ($12.50 per hour on and after December 31, 2018);

    • New York City Small Employers (10 or fewer employees): $10.00 per hour ($11.25 per hour on and after December 31, 2018, $12.50 per hour on and after December 31, 2019);

    • Long Island and Westchester: $9.15 per hour ($10.00 per hour on and after December 31, 2018, $10.85 per hour on and after December 31, 2019, $11.65 on and after December 31, 2020, $12.50 on and after December 31, 2021)

    • Remainder of New York State: $8.65 per hour ($9.25 per hour on and after December 31, 2018, $9.85 per hour on and after December 31, 2019, $10.40 per hour on and after December 31, 2020). 

  • Food Service Workers:

    • New York City Large Employers (11 or more employees): $8.65 per hour ($10.00 per hour on and after December 31, 2018);

    • New York City Small Employers (10 or fewer employees): $8.00 per hour ($9.00 per hour on and after December 31, 2018, $10.00 per hour on and after December 31, 2019);

    • Long Island and Westchester: $7.50 per hour ($8.00 per hour on and after December 31, 2018, $8.65 per hour on and after December 31, 2019, $9.35 on and after December 31, 2020, $10.00 on and after December 31, 2021)

    • Remainder of New York State: $7.50 per hour ($7.85 per hour on and after December 31, 2019, $8.35 per hour on and after December 31, 2020). 

  • Fast Food Employees: No tip credit is permitted for fast food employees. 

 

If you receive a significant portion of your income through tips and are paid no hourly wage or an hourly wage less than the above minimum wages, contact Pelton Graham today. You may be able to file a claim for lost wages.

Second, even if an employer “takes the tip credit,” the employer must pay overtime at a rate of 1.5 times the regular minimum wage, minus the tip credit for all hours worked beyond 40 per week. For example, for a food service employee in New York City at a large employer, the overtime rate must be $13 * 1.5 =  $19.50 minus the tip credit (which is $13 less $8.65, or $4.35), or $15.15. 

Third, employers are permitted to institute a “tip pool,” meaning that tips are all pooled together and then redistributed according to a preset plan. However, a tip pool may not include managerial employees or back-of-house employees such as chefs, line cooks and dishwashers. If you believe that portions of your tips are being unlawfully distributed to managers or back-of-house employees, contact Pelton Graham today.

Finally, employers may not require tipped employees to forfeit some of their tips in order to receive their hourly wages. This practice, known as a “kickback,” is illegal under the New York Labor Law. If your employer forces you to forfeit some portion of your tips in order to receive the rest of your wages, contact Pelton Graham today. 

PELTON GRAHAM LLC

The attorneys at Pelton Graham LLC are admitted to practice in New York, New Jersey, California, Oregon, Illinois and Iowa, and may work with a network of other attorneys throughout the country.

 

Disclaimer - Lawyer Advertising. The material contained in this website is for informational purposes only and is not to be considered legal advice. A lawyer-client relationship is not created by visiting this website. Prior results do not guarantee a similar outcome.

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