If you receive an hourly wage and work more than 40 hours in a workweek, you are generally entitled to overtime pay. However, if you receive a weekly or annual salary, then New York’s overtime requirements generally don’t apply. So, what are your rights if you are supposed to be paid hourly but your employer claims to pay you a fixed salary instead?
Unfortunately, this issue is all too common. Many employers in New York try to avoid paying overtime by improperly classifying their employees. Under New York law, qualifying employees who receive a salary are “exempt” from the state’s overtime requirements. In contrast, “non-exempt” wage-based employees are entitled to overtime pay in appropriate circumstances. In many cases, employers will improperly classify non-exempt employees as exempt in an effort to avoid paying the full wages their non-exempt employees are rightfully owed.
When is a Salaried Employee “Exempt” from Overtime Pay in New York?
So, when is a salaried employee exempt from overtime pay in New York? Generally speaking, in order for an employee to be classified as exempt—and therefore not eligible for overtime pay—the employee must work in an executive, administrative or professional (or “EAP”) role. While there is also a “Salary Basis Test” for determining overtime eligibility, most employees in non-EAP roles do not receive enough pay to qualify as exempt, even when their employers structure their pay as a weekly or annual salary instead of an hourly wage.
Executive Employees
Executive, administrative and professional duties are defined in N.Y. Comp. Codes R. & Regs. Title 12, Section 141-3.2. An “executive” employee is one who meets all of the following requirements:
- The employee’s primary duty involves “management of the enterprise . . . or of a . . . department or subdivision thereof;”
- The employee “customarily and regularly” directs the work of other employees;
- The employee has the authority to hire and fire other employees, or has the ability to make recommendations regarding hiring and firing that are “given particular weight;”
- The employee “customarily and regularly” exercises discretionary authority within his or her role; and,
- The employee must receive at least the relevant minimum salary listed below.
Simply giving an employee an executive title is not sufficient to qualify the employee for New York’s overtime pay exemption. If an employee’s position does not meet all five of the requirements listed above, then the employee is not an executive for purposes of determining the employee’s right to overtime pay if he or she works more than 40 hours in a workweek.
Administrative Employees
“Administrative” employees can also be exempt from overtime pay under New York law. To qualify for the state’s overtime pay exemption, an administrative employee must meet all of the following requirements:
- The employee’s primary duty involves “office or nonmanual field work directly related to management policies or general operations of his or her employer;”
- The employee “customarily and regularly exercises discretion and independent judgment;”
- The employee “regularly and directly assists an employer, or an employee employed in a bona fide executive or administrative capacity,” or, “performs under only general supervision work along specialized or technical lines requiring special training, experience or knowledge;” and,
- The employee must receive at least the relevant minimum salary listed below.
Here too, simply labeling an employee as an “administrator” is not enough to trigger New York’s overtime pay exemption. When assessing overtime pay eligibility, the New York State Department of Labor’ and the New York courts focus on the employee’s job responsibilities and compensation rate—not his or her job title.
Professional Employees
Under Section 141-3.2 of Title 12, “professional” employees are exempt from overtime pay if they meet any of the following requirements:
- The employee’s primary duty involves either: (i) work “requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study;” or, (ii) work that is “original and creative in character in a recognized field of artistic endeavor . . . and the result of which depends primarily on the invention, imagination, or talent of the employee;”
- The employee’s work requires the “consistent exercise of discretion and judgment;” or,
- The employee’s work is “predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work) . . . .”
New York’s Minimum Salary Requirement for Executives and Administrators
In addition to meeting the substantive job requirements listed above, executive and administrative employees in New York must also earn a minimum salary in order to be exempt from overtime pay. Currently, the minimum salary requirements for New York’s executive and administrative overtime exemptions are:
- New York City – $1,125.00 per week
- Nassau, Suffolk and Westchester Counties – $1,125.00 per week
- The Rest of New York – $1,064.25 per week
What if You Are Not an Executive, Administrative or Professional Employee?
With all of this in mind, what if you receive a weekly or annual salary and you are not an executive, administrative or professional employee?
While the answer to this question depends on your individual circumstances, non-EAP employees who receive a salary instead of an hourly wage are still entitled to overtime pay in many cases. As a result, if you work more than 40 hours per week (or have worked more than 40 hours in the past) and you have not been paid overtime, you may want to talk to a lawyer about your legal rights. An experienced New York employment lawyer will be able to assess your legal rights; and, if warranted, take legal action against your employer on your behalf.
Are You Entitled to Unpaid Overtime in New York? Contact Us for a Free Consultation Today
Do you need to know more about your right to overtime pay as an employee in New York? If so, we invite you to get in touch. To schedule a free consultation with a New York employment lawyer at Bell Law Group, please call 516-280-3008 or tell us how we can contact you online today.
