A remarkable number of employers are not compliant with federal and state wage and hour laws. In fact, according to a recent study, unlawful unpaid wages accounted for nearly $1 billion in losses to U.S. employees in 2012.
Our firm’s employment attorneys have a strong focus on unpaid wages and overtime. Not surprisingly, these hard-working lawyers have recovered millions in unpaid wages and overtime for our employee clients. Our employment attorneys will listen to your particular needs when it comes to collecting unpaid minimum wages, commissions, bonus payments, and other earned but unpaid wages from employers. Often, our attorneys are capable of collecting unpaid wages through a confidential demand letter negotiation for those clients interested in confidentiality. For those who prefer a more aggressive approach, we routinely file lawsuits under the New York Labor Law and the Fair Labor Standards Act for not only all unpaid wages, but also for penalties up to 100% of the underpayment (or double damages), interest, and attorneys’ fees.
Unpaid Wages, Unlawful Deductions, and Pooled Tips
It is illegal for your employer to force you to work “off the clock” or falsely report your hours. You may have a claim for back payment of all wages rightfully earned if your employer:
- Requires you to report early to work, clock out for certain activities, or stay past the end of your shift;
- Demands your presence on work premises without being paid for your time;
- Takes deductions from your pay for reasons other than taxes or benefits;
- Fails to reimburse you for business expenses; or
- Fails to pay you proper commissions.
Likewise, in the restaurant and hospitality industry, it is illegal for managers to pool your tips with non-serving employees. Although many businesses do this, it is considered theft and a violation of the law. You may have a claim for back payment of all tips rightfully earned if your employer:
- Pools bartender tips with kitchen staff, hosts, or managers; or
- Pools table server tips with kitchen staff, hosts, or managers
Unpaid Overtime: Consulting an Attorney
State and local law require that employees receive paid time-and-a-half pay for any hour worked over 40 per week. Even if you are a salaried worker, you may be entitled to overtime regardless of what your employer says about whether or not you are eligible for overtime pay.
Employees in the retail, restaurant, and sales industries are overrepresented among our litigation plaintiffs in unpaid overtime wage lawsuits. However, the unlawful nonpayment of overtime can take many forms, and no industry is immune from the influence of abusive employers. And cutting corners on overtime pay can take many forms: misclassifying workers as “exempt” — or ineligible for overtime — when in fact they are eligible, assigning nonmanagement employees management titles, forcing employees to work through their lunch break or after the end of their shift, paying hourly employees “straight time” — their regular hourly wage — instead of time-and-a-half, to avoid making overtime payments.
Questions and Answers on Unpaid Wages & Overtime
Q. What can I do if my wages are not paid?
A. If you have unpaid wages, one way you can try to recover them is by filing a claim with the New York Department of Labor . In order to file a claim, you need to head to their website and fill out a form to claim unpaid wages. You can also file a claim under federal law with the Wage and Hour Division of the United States Department of Labor.
Q. How do I sue for wages owed?
A. The first step in filing a lawsuit is contacting an attorney that specializes in unpaid wages and overtime. Once you review the details of your case with an expert attorney, they will be able to advise you on the best steps to take in order to file your discrimination lawsuit.
Q. Can I sue my employer for not paying me correctly?
A. Yes! There are state and federal laws protecting you from not being paid correctly by your employer. For example, the federal Fair Labor Standards Act (FLSA) establishes a minimum wage and a right to overtime pay. If you believe you are not being paid correctly, you might be entitled to recover against your employer for FLSA violations or similar violations under New York Labor Law. You should start by contacting an attorney that specializes in unpaid compensation and employment law.
Q. How do I write a demand letter for unpaid wages?
A. If you would prefer to write a demand letter yourself instead of hiring an attorney, there are several steps you can take. First, you might consider contacting your local state and/or federal labor office to confirm your legal claims. Then, you should write your demand letter. Make sure to clearly state your claims and the facts of the situation. You should use concise, neutral language and clearly state the amount you believe you are owed. You can then send the demand letter. While you can do this on your own, we strongly encourage hiring an attorney to write a demand letter on your behalf.
Q. Is being forced to work unpaid overtime legal?
A. Yes! Under the Fair Labor Standards Act (FLSA) and New York Labor Law, overtime hours are hours worked over forty in a week. For all hours worked over forty, you should receive one and one half times your regular rate of pay. Some employees, such as salaried employees, are exempt from overtime laws, meaning they are not entitled to overtime. To determine if you are exempt, you should contact an attorney who specializes in employment law.
Q. Can I refuse to work overtime if my employer asks me?
A. Generally, your employer can terminate you if you refuse to work overtime. Unless your employment contract contains limitations on the number of overtime hours you have to work, then your employer can most likely fire you for refusing to work overtime. Employers can also make working overtime a condition of your employment when you are hired.
Questions and Answers Relevant to New York
Note: Other states may provide similar proeections
New York law provides important protections to employees. The information below is a general overview of some of the rights created by New York law.
Q. Is my employer required to provide me with a meal period?
Yes. Most employers are required to provide hourly paid employees with at least 30 minutes of unpaid time off if an employee works more than 6 hours. If an employer requires an employee to be “on call,” or deal with work issues, during meal periods the employer must pay the employee for that time.
Q. How frequently must my employer pay me?
Different “frequency of pay” rules apply to different types of employees. “Manual workers” must be paid weekly. Employers can be liable for significant penalties if they choose to pay manual workers every other week. Clerical and other workers must be paid no less frequently than twice per month. Commission salespeople must be paid not less frequently than once per month.
Q. Can my employer require me to pay for a uniform?
Ordinary clothing (such as black trousers and white shirts) is generally not a “uniform.” But any clothing that includes the employer’s name or logo, even a t-shirt, is a uniform.
If the cost of obtaining and maintaining a uniform causes an employee’s hourly wage to fall below the applicable minimum wage, the employer may be required to pay “uniform maintenance pay.” These rules vary by industry.
Q. Is my employer required to pay me extra for working long days?
Employers in the hospitality industry are required to pay employees an extra hour of pay any time the end of an employee’s workday is more than ten hours after they started working (even if the employee actually worked less than ten hours). This is known as “spread of hours” pay. Employers in industries other than hospitality are required to pay a spread of hours to employees who are paid at minimum wage.
My employer makes it very difficult for me to determine whether I am being paid correctly. Is my employer required to provide me with a clear pay stub?
New York law imposes two requirements on employers that are intended to provide employees with clarity about their earnings and reduce wage theft:
- Wage Notices: Employers are required to provide written notice to each new hire that states: (1) rates of pay, including overtime rate; (2) how the employee is paid (i.e. by the hour, commission, etc.); (3) the regular payday; (4) the name and address of the employer; and (5) any deductions that are taken from the employee’s wages.
- Wage Statements: Employers are required to provide employees with wage statements that show: (1) the dates covered by the payment; (2) the basis of the payment (i.e. hourly, salary); (3) rates paid (regular and overtime); (4) hours worked; (5) allowances and credits; (6) gross wages; (7) any deductions from wages (i.e. for insurnace); and (8) net wages.
Notice must be provided in the employee’s primary language.
Employers that fail to comply with these requirements are liable to employees for penalties.
Lawyers who Fight for Unpaid Wages & Unpaid Overtime
If your employer failed to pay you and/or your colleagues, our employment lawyers may be able to recover up to six years’ worth of your overtime pay. All it takes is one person to step forward, and we can sue on behalf of one or many (class action). Courts often award double damages for these cases when employers act willfully or in bad faith.
We take unpaid wages, unlawful deduction, falsely pooled tips, and unpaid overtime cases on a contingency basis, so you only pay legal fees if we win — learn more. If you think you are the victim of unpaid wages or unpaid overtime, contact us today for a free case consultation to discuss your needs in detail by calling (646) 430-7930.
With offices in New York City and New Jersey, we help employees throughout the greater NY and NJ area on the issues of unpaid wages and overtime.
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