Overtime Rules: What Your Employer Can and Cannot Do

If you’re thinking about doing a little extra work outside of your normal 40-hour per week schedule—working overtime—it’s important to know your rights to overtime pay as well as what your employer’s rights.  

New York’s overtime rules add to and mirror employment laws at the federal level enshrined in the Fair Labor Standards Act (FLSA). Generally, employees who work over the 40-hour a week schedule are entitled to 1.5 times their regular pay (hence the term, time and a half) for those extra hours worked. Before you run down the hall to sign up for an extra shift, though, it’s important to know the details.

1)  The employer does not have pay overtime to salaried employees. Salaried employees (i.e. those who get paid a set amount each pay period regardless of hours worked), are not usually entitled to overtime under the law. Overtime is reserved for hourly employees. A company’s internal practices, however, may allow this, but there is no federal or state mandate. Some hourly workers, such as farm laborers, taxicab drivers, camp counselors, part-time baby sitters, etc. are exempted in New York.

2)  The employer does not have to pay overtime until you have worked 40 hours in a week. This may seem obvious, but remember, that’s 40 hours over the course of a 7-day week.  So, if you are scheduled to work on Saturday and Sunday, for eight hours each day plus three days during the week, you are not eligible for overtime on that Saturday and Sunday just because they are traditional non-work days for many other people.  

3) The employer can prohibit employees from working overtime. If the company has no need for additional work, it has the right to prohibit employees from working overtime. Of course, should those employees somehow work overtime anyway, the employer is required to pay them. It is unclear, however, if the employer could still fire the employee for violating company policy not to work overtime hours.

4) The employer may not have to provide overtime at all. There are exceptions to the requirement to pay overtime based on types of jobs (i.e. hourly agricultural workers) but there are also exceptions based on the type of employer. For example, the FLSA requiring overtime payments only applies to employers with $500,000 or more in annual sales or who are engaged in interstate commerce. While the first threshold is difficult for many businesses to meet, the second is almost guaranteed catch-all. This is because “interstate commerce” is interpreted extremely broadly and pretty much any business with an internet presence and sales outside of its state are likely to be considered operating within “interstate commerce.” Still, companies can try to argue that they are exempt from FLSA to get out of paying overtime wages.

As with most employment laws, one size does not fit all and there are always nuances and exceptions to what appear to be fairly straightforward requirements. This is why it is so important to have an employment attorney on your side who knows these nuances and can help you successfully navigate them—whether as an employer or employee. Rosen Law can easily fill that role. We provide our dedicated legal services in both Florida and New York. Contact us today to get started!

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