Stewart A. McMillan, Esq.

Wage & Hour Cases

The Fair Labor Standards Act (FLSA) is a federal law which, without limitation, requires overtime pay above 40 hours per week and payment of at least minimum wage to all employees.

Violations

Our New York State Employment Law Lawyers will counsel you that many employers intentionally try to get around the FLSA’s requirements in a number of different ways which include:

  1. Classification of employees as “Independent Contractors” - some employers do not pay overtime by improperly classifying their workers as independent contractors when they are actually “Employees”;
  2. Failure to Pay Minimum Wage - many employers make the workers work extra hours “Off the Books” - thereby reducing the wage to less than the required weekly minimum wage (which is $10.40 per hour in New York, but is less if the employee receives tips);
  3. Claims of Exemption - other employers claim the employee fits into one of the exemptions under the FLSA and is, therefore, not entitled to overtime. However, most employees are “exempt” and, therefore, entitled to overtime under the FLSA.

In order to be “Non-Exempt”, an employee must meet a three-party test:

  1. Salary - must be greater than $23,600 per year ($455 per week);
  2. Must be Paid on a “Salary Basis” - so, for example, the employee must be guaranteed a basic minimum weekly paycheck no matter what services they provide;
  3. The Employee Must Perform Certain Types of “Job Duties” - the “Job Duties” must generally be high level. The title of the job is irrelevant. What is important is the actual significance of the work which is performed. The work, which is exempt, generally falls to three basic categories: executive, professional, or administrative.
Retaliation The FLSA prohibits employers from retaliating against employees who claim a violation of the FLSA. So they cannot fire, demote, or suspend you if you complain about lack of overtime or minimum wage pay. Damages

If your employer has violated the FLSA, you may be entitled to damages, which include:

  1. Overtime - overtime is 1.5 x your standard wage for all hours in excess of 40 per week;
  2. Back Pay - back pay equals remuneration of all money which is unpaid. This often arises where employers have failed to account for travel time or meal time in an employee’s day;
  3. Liquidated Damages - if you can prove a violation of the FLSA, you may be entitled to liquidated damages which are two times the amount owed.

Accordingly, if your employer has violated the FLSA, do not hesitate to contact our offices immediately. The phone call is free and our attorneys are standing by 24/7 to assist you.

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