Although New York workers are protected by federal, New York State, and New York City laws that impose overtime, minimum wage, and prevailing wage requirements, the practice of wage theft and other forms of wage and hour exploitation occurs all too often. Many workers are deprived of thousands of dollars each year because they do not realize their employer is engaged in unlawful practices to systematically deprive employees of the compensation required by applicable law. In other cases, workers recognize that they are being cheated, but they fear reprisals from their employer if they assert their legal rights. Our New York wage and overtime lawyers have highlighted some of the common practices companies use to deny workers the pay they are entitled to under the applicable law.
Types of Wage Theft
Misclassification as Exempt: A significant number of workers stay late, come in on weekends, and regularly put in ten hours or more per day without receiving overtime pay. Workers often acquiesce because their employer misclassifies them as exempt by applying labels like “manager,” “supervisor,” “vice-president,” or a similar title. This type of designation by an employer does not determine eligibility for overtime. All non-exempt employees are entitled to receive time and a half for any hours worked over forty per week. Employers are increasingly engaging in the tactics of giving computer technology and administrative workers a title and indicating they are salaried employees to avoid overtime requirements. An experienced New York wage and hour attorney can evaluate your situation under the Fair Labor Standards Act to determine whether you have been cheated out of overtime pay.
Misclassification as Independent Contractor: Another misclassification strategy increasingly used by employers is to designate employees as independent contractors (ICs). This approach is particularly insidious because ICs can be denied minimum wage, overtime pay, and other legal rights and protections. Again, a company’s unilateral designation of workers as ICs or the existence of an IC contract do not dictate a worker’s status. A range of factors must be considered that relate to the extent which the company exercises authority and control over the day-to-day activities of the worker.
Exploiting Immigration Status: Undocumented workers frequently are exploited because they do not understand they can take advantage of protections under certain employment laws. Further, workers in this situation feel vulnerable to threats by their employer to assert immigration issues if workers sue for unpaid overtime or minimum wages. However, workers have a right to receive overtime and minimum wages regardless of their employment status. Courts also do not allow employers to rely on a worker’s immigration status as a defense during overtime or minimum wage litigation.
Improper Distribution of Tips: Because many workers in the food services industry receive tips, they are not covered by minimum wage requirements. Some employers will attempt to skirt the strict rules about which workers can participate in tip pools, and how much of a tip credit can be taken.
Prevailing Wage: Tradespeople providing services under government-related contracts have extensive rights regarding wages even if they are not union workers. Because many of these workers receive a significant wage, they do not realize they are deprived of income under prevailing wage standards. Some employers presume that workers will not assert their right to prevailing wage because of concerns about jeopardizing their already significant hourly pay.
Wage and overtime laws under both state and federal law have many technical requirements with important exemptions. If you think that your employer has engaged in wage theft by failing to pay you overtime or minimum wage, you should contact an experienced New York employment law attorney.