Unpaid Overtime Claims for New York Employees

What does an unpaid overtime violation actually look like?

Unpaid overtime is any workweek in which you worked more than 40 hours and were not paid one and one-half times your regular rate for the hours past 40. It rarely announces itself. In most cases the paycheck looks normal and the shortfall lives inside how the hours were counted or how the rate was built.

The patterns that come up most often on Long Island and in New York City:

• Straight time for overtime You worked 48 hours and were paid your normal hourly rate for all 48. Common with cash pay, day rates, and small construction, landscaping, restaurant, and home-health employers.
• A salary treated as a cap You are paid a fixed weekly salary and told salaried people do not get overtime, so 55-hour weeks cost the employer nothing extra.
• Overtime paid on the wrong rate You earn a base wage plus a night differential, a weekly production bonus, or commissions, and the overtime premium is calculated on the base wage alone.
• Pay-period averaging You are paid biweekly, and payroll totals 80 hours across the two weeks, so a 50-hour week followed by a 30-hour week produces no overtime at all.
• Hours moved off the books Time is edited after the fact, punches are rounded in one direction, or you are asked to clock out and finish. Those overlap with time shaving and rounding and off-the-clock work, which are separate claims that frequently ride along with an overtime case.
• “Comp time” in a private workplace Extra hours are banked as flex time or a short week later instead of being paid.
• A second job at the same employer You work two roles for related entities at different rates, and the hours are tracked separately and never combined even though the total exceeds 40.

If any of that describes your paychecks, the unpaid overtime calculator will give you a rough sense of the scale before you speak with anyone.

Which law requires overtime pay, and who is covered?

Two statutes apply at once, and you get the benefit of whichever is more protective.

The Fair Labor Standards Act, at 29 U.S.C. § 207(a), sets the federal rule: non-exempt employees must receive at least one and one-half times the regular rate for hours over 40 in a workweek. Federal law does not cap the hours an adult may be scheduled and does not require premium pay for nights, weekends, or holidays. The 40-hour line is the only trigger.

New York applies the same 1.5x overtime requirement through its wage orders under the Minimum Wage Act, including 12 N.Y.C.R.R. § 142-2.2 for most industries. New York’s version reaches some workers federal law exempts; for those categories the wage order requires overtime at one and one-half times the minimum wage rather than the regular rate. New York also adds remedies federal law does not: a longer lookback, mandatory-in-practice liquidated damages, and wage statement requirements under NYLL § 195.

Coverage is broad. Hourly and salaried, full-time and part-time, paid by the day, by the piece, or in cash, and regardless of immigration status. What matters is whether you are an employee who is non-exempt, not your title, your pay frequency, or how the employer files your taxes.

Does a salary or a “manager” title mean you are exempt?

No. Exemption is a two-part test, and the employer bears the burden of proving both parts.

The salary test You must be paid a predetermined, fixed salary that is not subject to reduction based on quality or quantity of work, at or above a threshold amount. New York’s threshold for the executive and administrative exemptions is higher than the federal one and is adjusted periodically by state law, so the figure that governs depends on the year and the region where you worked. Confirm the number in effect for your period rather than relying on one you read somewhere.

The duties test Your actual day-to-day work must fit the executive, administrative, or professional definition. An executive employee’s primary duty must be management, including directing at least two full-time employees and having genuine authority over hiring and firing. An administrative employee’s primary duty must involve the exercise of discretion and independent judgment on matters of significance, not applying rules someone else wrote.

Fail either part and you are non-exempt. The assistant manager who runs a register most of a shift, the “operations coordinator” who follows a script, and the salaried dispatcher with no hire-or-fire authority are the classic examples. If that is your situation, read employee misclassification.

How is unpaid overtime back pay calculated?

The math has three steps, and the second is where most employers go wrong.

1. Count the hours actually worked in each workweek, week by week. Not the pay period. Not the average.
2. Determine the regular rate for that week The regular rate is total straight-time compensation for the week divided by the hours it was paid to cover. It includes nondiscretionary bonuses, shift and weekend differentials, commissions, and similar earnings. Truly discretionary bonuses and certain premium payments are excluded. For a salaried non-exempt employee, the salary is converted to an hourly figure based on the hours it was intended to compensate, and under New York law a weekly salary is generally presumed to cover 40 hours unless the employer proves otherwise.
3. Apply the premium If you were paid nothing for hours past 40, you are owed 1.5 times the regular rate for each of them. If you were paid straight time, you are owed the missing half-time premium, 0.5 times the regular rate per overtime hour.

A worked example. Suppose you earn $22 an hour plus a $100 weekly attendance bonus and work 50 hours. Straight-time pay is 50 × $22 = $1,100, plus the $100 bonus, for $1,200. The regular rate is $1,200 ÷ 50 = $24, not $22. The premium owed on the 10 overtime hours is 10 × $12 (half of $24) beyond the straight-time already paid, so $120. Over a six-year lookback that single rounding-out of the bonus is worth roughly $37,000 before doubling.

Overtime weeks often carry a companion claim for spread of hours pay when the span from the start to the end of your workday exceeds ten hours.

How many years of back overtime pay can you recover in New York?

Six years under the New York Labor Law. Two under the FLSA, extended to three where the violation was willful.

That gap decides the value of most cases. A six-year lookback on a recurring weekly shortfall produces roughly three times the exposure of the federal period, which is why New York overtime cases are usually filed as hybrids: an FLSA collective claim plus a New York Labor Law class claim in one complaint. See wage and hour class actions for how the two mechanisms work together.

One federal quirk matters practically. In an FLSA collective action the clock does not stop when the case is filed. It stops when you sign and file a written consent to join. Every week of delay erases a week at the far end. New York’s six years often absorbs the loss, but not always.

What are liquidated damages, and how much do they add?

Liquidated damages double your unpaid wages. Under NYLL § 198(1-a), an employee who proves unpaid overtime is entitled to an additional amount equal to 100% of those wages unless the employer proves it had a good-faith basis to believe its pay practice was lawful, a standard employers rarely meet, because “we always did it this way” is not a good-faith basis. The FLSA provides a parallel doubling under 29 U.S.C. § 216(b). You cannot stack both on the same wages, but you take whichever produces more.

On top of that: prejudgment interest on the state-law claim, separate statutory damages if your wage statements did not comply with NYLL § 195, and attorneys’ fees and costs. Both statutes shift fees to the employer when the employee wins, which is what makes a $9,000 overtime claim worth pursuing, because it is not a $9,000 case.

What records help prove an unpaid overtime claim?

Documents that show hours on one side and pay on the other. In rough order of weight:

• Pay stubs and W-2s, which show the rate paid, the hours recorded, and whether bonuses were folded into the overtime rate.
• Punch data and scheduling app exports Screenshot or download them while you still have access; it disappears the day employment ends.
• The written pay or timekeeping policy A uniform policy is what turns one person’s shortfall into a class-wide claim.
• Texts and emails about hours: a supervisor telling you to keep the timesheet at 40, or asking you to come in early off the clock.
• Your own contemporaneous notes A calendar, a notes-app log, a photo of the posted schedule.
• Coworker accounts confirming the same practice in the same role.

Missing records do not sink a claim. The employer is the party legally required to keep them under 29 U.S.C. § 211(c), and where its records are absent or unreliable, an employee may prove hours by reasonable estimate, with the burden shifting to the employer to disprove it. Take only what is lawfully yours (your own pay records and messages) and ask before removing anything else.

What should you do if you were not paid overtime past 40 hours?

1. Reconstruct a typical week in writing before the details blur: arrival time, when work really started and stopped, what the timesheet said.
2. Save your pay stubs, punch history, and schedules to a personal device while you still have access.
3. Do not sign a release or severance agreement without review. Releases routinely extinguish overtime claims worth far more than the check.
4. Do not confront payroll alone It seldom produces payment and sometimes produces retaliation, separately unlawful under NYLL § 215 and the FLSA, and a claim of its own.
5. Bring any arbitration agreement you signed at hire.
6. Move before the federal clock costs you weeks.

How TA Legal Group handles unpaid overtime cases

We represent employees and executives in the great majority of our matters, and employers in a limited number of them. We run a conflict check before taking any case. Fee arrangements depend on the matter. Many employee-side cases are handled on a contingency fee basis, where there is no fee unless we recover for you and case costs and disbursements are advanced by the firm and reimbursed from any recovery. Other matters are handled on a retainer, and we tell you in writing which applies before you commit to anything. The initial consultation is always free and confidential.

Most overtime engagements begin with a short review of three things: what you actually did all day, how many hours you actually worked, and what your pay stubs show. If the role was misclassified company-wide, there is usually a group claim, and we will say so. If the claim is individual, we will say that too. Call 631.498.7984 or contact us.