Overtime Rules for New York Employees

Non-exempt employees are entitled to receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than 1-1/2 times their regular rate of pay. An employee's regular hourly rate of pay cannot be less than the current minimum wage rate under both FLSA and N.Y.S. law. The required minimum wage rate is currently $7.25 per hour under federal law, and under New York law (effective December 31, 2016) ranges from $9.70 to $11.00 per hour depending on the location of the employee’s work site and the employer’s size if they work in NYC.

Payments which are not part of an employee's regular hourly rate for the purpose of overtime calculations include the following:

  • Payment for expenses incurred on the employer's behalf;
  • Premium payments for overtime work or the premiums paid for work on Saturdays, Sundays, and holidays;
  • Discretionary bonuses;
  • Gifts and payments in the nature of gifts on special occasions; and
  • Payments for periods when no work is performed due to vacation, holidays, or illness.

An employee's weekly earnings may be paid on a piece-rate, salary, commission, or other basis, but the overtime pay due must be computed on the basis of the average hourly rate of pay derived from these earnings. This regular hourly rate is calculated by dividing the total pay for employment (except for the exclusions listed above) in any workweek by the total number of hours actually worked by the employee. Where non-cash payments are made to employees in the form of goods or facilities, the reasonable cost to the employer or fair value of such goods or facilities must be included in the employee's regular hourly rate of pay.

Where an employee in a single workweek works at two or more different types of jobs for the same employer for which different straight-time rates have been established, the regular rate for that week is the weighted average of both rates. In other words, the earnings from all such rates are added together and this total is then divided by the total number of hours worked at all jobs.

When an employer takes a lawful tip credit or allowance against the minimum wage rate, the overtime rate is the employee's regular rate of pay before the tip credit is taken multiplied by 1-1/2 less the tip credit applied to the employee's wage rate.

Hospital/Residential Care Workers: Employees of hospitals and residential care establishments may have an agreement with their employers that they will work 14 day periods in lieu of 7 day workweeks, provided that the employees are paid overtime premium pay within FLSA's requirements for all hours worked over 8 in a day or 80 in the 14 day work period, whichever is the greater number of overtime hours.

If you have any questions or need more information concerning your specific wage and hour issues, please call us at (914) 949-2700 or use our email form to get in touch with New York Labor and Employment Attorneys.