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Wage and Hour FAQs

Employment Discrimination FAQs


Wage and Hour FAQs

Q. What is the minimum wage rate in New York and under federal law?

As of July 2009, the New York State minimum wage rate is $7.25 per hour. The federal minimum wage rate is also $7.25 per hour.


In cases where the federal and state wage rates are different and an employee is subject to both state and federal minimum wage laws, the employee is entitled to the greater of the two wages.


Q. What is the minimum wage rate and overtime provision for food service workers?

As of July 2009, the New York Department of Labor increased the "tip credit" that restaurants are entitled to take. This helped increase the minimum wage rate from $4.60 to $4.65 for food service workers who receive tips. The increase also affects the overtime premium paid to food service workers in New York.


Please be aware that when an employee is required to wear a uniform at work, the cost of purchasing or maintaining the uniform plus earnings should not make the employee's hourly rate fall below the minimum wage rate. The value of meals and lodging is also considered when an employer calculates an employee's minimum wage requirements.


The Department of Labor also increased the minimum weekly salary required for an employee to be considered "exempt" from receiving overtime under New York law. The result is that an employee paid at least a minimum weekly salary of $543.75, increased from $536.10, is not entitled to receive overtime.


Q. Is every worker entitled to receive minimum wage?

Many workers are entitled to receive minimum wage, but some are not. Workers who are exempt from the minimum wage law include:

  • Independent Contractors (i.e., workers who are in business for themselves) are not considered "employees", so they are not protected by the minimum wage law;

  • Executives and administrators earning more than $543.75 per week;

  • Professionals;

  • Outside salespersons (i.e., employees who customarily and regularly work away from the employer's business, selling or taking orders to sell goods and services);

  • Taxicab drivers;

  • Part-time babysitters;

  • Government employees, although certain non-teaching employees of BOCES are covered under the minimum wage law;

  • Companions of the sick or elderly who live in their employer's home and whose principal duties do not include housework;

  • Ministers and members of religious orders;

  • Volunteers, learners, apprentices and students working in non-profit institutions; and

  • Students obtaining vocational experience.


Q: Who is exempt from overtime pay?

Workers who are exempt from the Fair Labor Standards Act ("FLSA") are generally not entitled to overtime pay. These workers include:

  • Independent contractors;

  • Executive, administrative, and professional employees who are paid on a salary basis and meet the job duties test;

    • Paid on a Salary Basis:

      • Means the employee earns at least $455 per week and receives the same salary every week, regardless of how many hours the employee works or the quantity or quality of the work the employee does.

    • Job Duties Test:

      • Generally means the employee performs work that requires an advanced degree, is managerial or supervisory in nature, or requires that the employee make relatively high-level business decisions.

    • Volunteers;

    • Outside salespeople;

    • Certain computer specialists (such as systems analysts, programmers, and software engineers) who earn at least $27.63 per hour;

    • employees of seasonal amusement or recreational businesses, such as ski resorts or county fairs;

    • employees of organized camps, or religious or nonprofit educational conference centers that operate for fewer than seven months a year, and;

    • casual domestic baby sitters and people who provide companionship to those who are unable to care for themselves (this exception does not apply to those who provide nursing care, or to personal and home care aides who perform a variety of domestic services).


Contact our office regarding exemptions to overtime or overtime pay and an experienced employment lawyer in NYC will be happy to assist you.


Q: Are all employers required to pay overtime?

Many employers have to pay overtime to their workers, but some do not. For an employer to be covered under the Fair Labor Standards Act ("FLSA"), thus required to pay overtime, the employer must:


  • Be engaged in interstate commerce (i.e., the employer conducts business that involves more than one state). Interstate commerce is interpreted very broadly and includes making phone calls to or from another state, sending mail out of state, handling goods that have come from or will go to another state, etc.

  • An employer whose business earns $500,000 or more in annual sales is also covered under the FLSA and required to pay overtime to workers who are entitled to receive it.


NOTE -- even if an employer is not covered by the FLSA, an employee may still be entitled to receive overtime under New York pay rates. Contact our experienced NY employment lawyer for more details.


Q. Am I entitled to receive meal periods or "breaks" under New York law?

Most workers are allowed at least thirty (30) minutes for a noon day meal under Section 162 of the New York Labor Law. Every person employed in or in connection with a factory is allowed at least sixty (60) minutes for the noon day meal.


The noon day meal period is recognized as extending from eleven o'clock in the morning to two o'clock in the afternoon.


Q. Am I entitled to be paid for holidays, sick time or vacations under New York law?

An employer does not have to pay you for holidays, sick time or vacation under New York law, unless an established workplace policy, custom, or contract requires it.


If an employer pays you for holiday, sick time or vacation time, the employer can unilaterally impose its own conditions on the benefits, but the employer may not provide those benefits in a discriminatory or retaliatory manner or in a manner that otherwise violates federal, state or local law.


Contact our office to speak to a New York employment lawyer about your holiday, sick or vacation pay if you feel you are entitled to, but have not received these benefits.


Q. Wrongful termination in New York: Can I be fired without due cause?

New York State is an "employment-at-will" state, which means that employment may be terminated for any reason or no reason, with or without cause and with or without notice by you or by your employer.


Still, at-will is not without restrictions. An employer may not fire you for unlawful discrimination, harassment or retaliation under New York or federal law. Unlawful discrimination or harassment is misconduct against your sex, race, sexual orientation, pregnancy, gender, age, disability, religion, or other legally protected classification.


Wrongful termination under NY and federal law may also occur if your employer fires you in a manner that breaches an established contract that otherwise restricts termination (such as a collective bargaining agreement, employment offer letter, or provision in an established employee manual), or in a manner that otherwise violates New York or federal law.


Other exceptions to the employment-at-will doctrine exist under sections of the New York State Labor Law. Section § 201-d of the Labor Law prohibits an employer from firing an employee for engaging in political or recreational activities outside of the workplace, for legal use of consumable products outside of work, or for membership in a union. Section § 215 of the Labor Law prohibits employers from penalizing employees for making a complaint to the employer, to the Commissioner of Labor, or to the Commissioner's representative about any provision of the Labor Law.


If you believe you suffered a wrongful termination, our experienced New York employment lawyer will be happy to assist you. For more information click here.


Q: If I am fired or voluntarily terminate my employment, when does my employer have to pay me my final check?

When employment is terminated, your employer must pay your last check by the regular payday for the pay period worked. If requested, the employer must also mail the final check directly to you.


For more information, contact our office to speak with an experienced New York employment lawyer about your case.


Q: Am I entitled to Family and Medical Leave?

New York State does not offer paid family leave at this time, although legislation has been proposed that would mandate paid medical leave for certain health conditions of your own.


New York does follow the Family and Medical Leave Act ("FMLA") under federal law, which offers a 12-week period of unpaid leave to employees who need to take time off for certain health conditions of their own or of family members. The FMLA also provides leave for family members of those serving in the military under certain circumstances.


Contact our office to speak to an experienced employment lawyer in New York regarding the Family and Medical Leave Act.