{6 minutes to read} In addition to employment discrimination the firm practices wage and hour litigation. Wage and hour litigation is mostly comprised of two separate violations, minimum wage and overtime. The Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) delineate the rules for employers regarding paying Minimum Wage and Overtime.
Minimum Wage
Minimum wage is relatively straightforward; depending on the State, employers are required to pay a minimum hourly rate for the first 40 hours you work in any week. Sometimes you will find employers who are paying people $300 or $400 a week, for all hours worked, but they are underpaying on minimum wage. It happens most often when employees are paid monthly or biweekly.
While working on commission often allows employees to earn in excess of the minimum wage, there are times in which an employee does not receive any commissions during a particular pay period. If that occurs, an employer is responsible for paying the employee a wage that satisfies the minimum wage for the pay period.
Overtime
Overtime is paid at 1 1/2 times the employee’s hourly rate for all hours worked over 40 in a workweek, also known as paying time and one-half. For instance, if your hourly rate is $10.00 an hour, your overtime rate is $15.00. Many employers fail to pay time and a half. Generally, we see employers paying straight time for every hour worked regardless of the weekly total. That means the employee is not being paid the additional 1/2 rate for weekly hours worked over 40.
We often see that in the construction trades, where painters, plumbers or carpenters, working 50 or 60 hours a week are paid straight time for those hours worked over 40, when they are actually entitled to the additional half rate of pay.
It is the employer’s burden to maintain time and payroll records because the employer is in the best position to not only track time but also to preserve time and payroll records Not having that documentation is a major problem for an employer especially if facing a wage and hour lawsuit. The employees are not responsible for keeping track of their hours. To present a claim an employee need only make a fair and reasonable estimation of their hours worked. It is up to the employer to refute that with evidence.
Generally, we see employees who will testify that they started and end worked at particular time. We then look for some type of demonstrative evidence. For instance, in a recent case the employer said none of the workers were allowed to start before 9 a.m. because that’s when all businesses open. However, there were numerous texts from supervisors to employees prior to 9am stating, “You’re supposed to be here at 7. Where are you?”
Other types of evidence that an employee can use to refute an employer’s position include cell phone records, toll records, E-ZPass records, log in/out and GPS for vehicles and even testimony from other employees. There is no limit on the evidence an employee can use to prove their hours worked.
An important note for employees in New York State; NYLL has one of the most employee friendly statute of limitations within which to bring these claims. An employee has six years to bring a wage and hour claim. Under federal law, an employee only has three years.
If you or someone you know has any questions regarding wage and hour violations, please feel free to contact me at 516-203-7180.
Robert J. Valli, Jr.
Partner
email: [email protected]
