Unpaid Overtime Attorney

Every week, workers across New York City put in hours far beyond forty (in restaurants, on construction sites, in warehouses, offices, hospitals, and retail stores) without receiving the overtime premium the law guarantees. If your employer has paid you straight time for overtime hours, paid you a flat salary regardless of how long you worked, shaved time from your punches, or labeled you "exempt" or an "independent contractor" to avoid paying time-and-a-half, you may be owed substantial back pay. New York law is among the most protective in the country, and the remedies available to workers here are powerful: up to six years of back wages, an equal amount in liquidated damages, nine percent pre-judgment interest, and attorney's fees paid by the employer.

Our firm represents employees throughout New York City in unpaid overtime claims, from individual cases to large class and collective actions. This page explains who is entitled to overtime, the specific statutes and regulations that govern these claims, the deadlines that apply, and (concretely, with worked examples) what a claim can be worth.

The Law That Guarantees Your Overtime Pay

Two overlapping bodies of law require overtime pay for most New York City employees:

• The federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 207(a)(1), requires covered employers to pay non-exempt employees one and one-half times their "regular rate" for all hours worked over 40 in a workweek.
• New York Labor Law Article 19 (the Minimum Wage Act, NYLL § 650 et seq.) and the wage orders issued under it impose the same time-and-a-half requirement as a matter of state law. For most industries, the operative regulation is 12 NYCRR § 142-2.2 (the Minimum Wage Order for Miscellaneous Industries and Occupations). Hotel and restaurant workers are covered by the Hospitality Industry Wage Order, 12 NYCRR § 146-1.4, which contains its own overtime provision.

State law is often the more valuable source of recovery because it reaches back further in time (six years versus two or three under federal law) and, in some respects, covers workers the federal statute does not. Residential employees who live in their employer's home, for example, are entitled under 12 NYCRR § 142-2.2 to overtime after 44 hours in a week rather than 40.

Overtime Is Owed Even If Your Base Rate Is Above Minimum Wage

A common misconception is that overtime rules only protect minimum-wage workers. They do not. An employee earning $30 per hour who works 50 hours in a week is owed $45 per hour for those last ten hours. The overtime obligation attaches to your actual regular rate of pay, whatever it is, unless a genuine exemption applies.

"Exempt" Employees: Where Misclassification Happens

Employers frequently escape overtime obligations (improperly) by classifying workers as exempt. The principal exemptions are for bona fide executive, administrative, and professional employees. Two things must be true for the executive and administrative exemptions to apply, and employers routinely fail on both:

1. The Salary Threshold

Under the New York wage orders, an employee in New York City cannot be exempt as an executive or administrative employee in 2025 unless paid a salary of at least $1,237.50 per week ($64,350 per year). That threshold rises to $1,275.00 per week in 2026. If your employer calls you a "manager" but pays you a salary below the threshold, the exemption fails as a matter of law and you are owed overtime, regardless of your duties.

2. The Duties Test

Even above the salary threshold, the exemption depends on what you actually do, not your job title. An "assistant manager" at a retail store who spends most of the day stocking shelves, running a register, and doing the same work as hourly staff is likely non-exempt. An executive must, among other things, customarily direct the work of two or more employees and have genuine authority over hiring and firing. An administrative employee must exercise independent judgment on matters of significance, not merely follow procedures. Titles like "coordinator," "analyst," "team lead," and "supervisor" are frequently attached to jobs that are non-exempt in substance.

Independent Contractor Misclassification

Labeling a worker a "1099 contractor" does not make it so. Courts look at the economic reality of the relationship: who controls the work, who supplies the tools, whether the worker is economically dependent on the business. Delivery workers, construction laborers, cleaners, drivers, and salon workers in New York City are routinely misclassified as contractors and denied overtime they are legally owed.

Common Overtime Violations We See in New York City

• Straight-time-for-overtime: paying the regular hourly rate for all hours, including those over 40.
• Flat weekly salaries for long hours: paying a fixed sum (say $900 per week) no matter whether the employee works 45, 60, or 70 hours.
• Off-the-clock work: requiring pre-shift setup, post-shift cleanup, mandatory meetings, donning safety gear, or answering emails and calls at home without pay.
• Time shaving and automatic deductions: rounding punches down, or automatically deducting 30–60 minutes for meal breaks that employees never actually take.
• Regular-rate errors: excluding non-discretionary bonuses, shift differentials, or commissions when calculating the time-and-a-half rate.
• Illegal "comp time": private employers offering time off "banked" for a later week instead of paying overtime in the week it was earned.
• Tip-credit abuses in hospitality: under 12 NYCRR Part 146, employers who take a tip credit must satisfy strict notice and recordkeeping requirements; failures can invalidate the credit and inflate the overtime owed.
• Unpaid spread-of-hours pay: under 12 NYCRR § 142-2.4 and § 146-1.6, employees whose workday spans more than ten hours are owed an additional hour of pay at the minimum wage, a claim that often travels alongside overtime claims.

What You Can Recover Under New York Law

New York Labor Law § 663(1) and § 198(1-a) give underpaid employees a private right of action and a remarkably strong remedial package:

• Full back overtime wages for up to six years.
• Liquidated damages equal to 100% of the unpaid wages, unless the employer proves it acted in good faith with reasonable grounds to believe it was complying, a defense employers rarely establish. In practice, this doubles the recovery.
• Pre-judgment interest at 9% per year under CPLR § 5001 and § 5004, recoverable in addition to liquidated damages under state law.
• Attorney's fees and costs, paid by the employer, under NYLL § 663(1) and § 198(1-a).
• Wage Theft Prevention Act penalties: NYLL § 195(1) requires a written pay-rate notice at hiring, and § 195(3) requires accurate wage statements with every payment. Violations carry statutory damages under NYLL § 198(1-b) and § 198(1-d) of $50 per workday (notice violations) and $250 per workday (wage statement violations), each capped at $5,000, up to $10,000 in additional damages per employee.
• A 15% judgment enhancement: under NYLL § 198(4), if an employer fails to pay a wage judgment within 90 days, the judgment automatically increases by fifteen percent.

Deadlines: The Statute of Limitations, Explained Concretely

Overtime claims accrue paycheck by paycheck. Each payday on which you were underpaid is a separate violation with its own limitations clock. The deadlines are:

• New York Labor Law: six years from each underpayment (NYLL § 663(3); NYLL § 198(3)).
• FLSA: two years, extended to three years for willful violations (29 U.S.C. § 255(a)).

Worked example: Suppose you file a lawsuit on June 1, 2026. Under the New York Labor Law, you can recover unpaid overtime for every pay period back to June 1, 2020. Under the FLSA, your recovery reaches back only to June 1, 2024, or June 1, 2023 if the violation was willful. This is why experienced counsel almost always pleads the state claim: it can triple the recoverable period.

The critical practical point: every week you wait, the oldest week of your claim expires. A worker who was underpaid for years and delays a year before filing permanently loses a full year of back wages off the front of the claim. There is no mechanism to revive those weeks once the six years run.

A Worked Damages Example

Consider a warehouse worker in Queens paid $18.00 per hour who worked 50 hours per week for three years but was paid straight time for all 50 hours.

Now change one fact: the worker was paid a flat $720 weekly salary (roughly $18/hour for 40 hours) with nothing for the overtime hours. In that scenario the employee is typically owed the full time-and-a-half rate ($27.00) for each of the ten weekly overtime hours ($270 per week rather than $90) and the numbers roughly triple. The structure of the underpayment matters enormously to valuation, which is why claims should be calculated by counsel, not estimated from an online calculator.

How the Claim Process Works

Step 1: Case Evaluation and Damages Calculation

We review your pay stubs, schedules, time records, and work history, determine whether any exemption plausibly applies, and calculate damages under both statutes week by week.

Step 2: Choosing the Forum

You generally have two paths:

• An administrative claim with the New York State Department of Labor, which investigates wage complaints and can order payment plus liquidated damages. This route requires no filing fee but gives you little control over timing or strategy.
• A civil lawsuit under NYLL § 663 and 29 U.S.C. § 216(b). Litigation allows discovery of the employer's payroll records, class or collective treatment where co-workers suffered the same practices, and fee-shifting that makes representation economical even for modest individual claims.

Step 3: The Employer's Records: or Yours

NYLL § 195(4) and 12 NYCRR § 142-2.6 require employers to keep accurate payroll records for six years. When an employer fails to keep them, the law does not punish the worker: courts permit employees to prove their hours through their own reasonable recollection and testimony, and the burden shifts to the employer to rebut it. In other words, you do not need perfect records to win: your credible memory of your schedule is evidence.

Step 4: Resolution

Most overtime cases resolve through negotiated settlement, often within months. Where employers refuse to pay fairly, we litigate through judgment, and NYLL § 198(4)'s 15% enhancement gives employers a strong incentive to pay judgments promptly.

Retaliation Is Illegal: and Separately Compensable

Many workers hesitate to assert their rights for fear of being fired. New York Labor Law § 215 makes it unlawful for an employer to discharge, threaten, penalize, or in any way discriminate or retaliate against an employee for complaining about wage violations, internally, to the Department of Labor, or in court. Remedies for retaliation include reinstatement, lost wages, liquidated damages of up to $20,000, and attorney's fees, and the employer faces civil penalties of up to $10,000 for a first violation ($20,000 for repeat violations). Immigration status is irrelevant: overtime protections and anti-retaliation protections cover all workers regardless of documentation, and employers may not use status as a threat.

Evidence to Start Gathering Now

• Pay stubs and wage statements (or note their absence; that itself is a violation);
• Work schedules, punch records, timesheets, or screenshots of scheduling apps;
• Texts, emails, or messages showing work performed before or after shifts;
• Your own contemporaneous log of hours going forward, date, start time, end time, breaks;
• Names of co-workers subject to the same pay practices;
• Any "notice of pay rate" form you signed at hiring, or confirmation you never received one.

Frequently Asked Questions

My employer says I agreed to a flat salary. Doesn't that waive overtime?

No. Overtime rights under the FLSA and the New York Labor Law cannot be waived by private agreement. A salary arrangement, a signed handbook acknowledgment, or even a written contract cannot eliminate overtime owed to a non-exempt employee.

I was paid in cash off the books. Can I still bring a claim?

Yes. Off-the-books workers have the same overtime rights, and the absence of employer records shifts the evidentiary burden in your favor.

I no longer work there. Is it too late?

No. Former employees can sue for any underpayments within the six-year lookback under NYLL § 663(3). Many of our clients bring claims only after leaving.

What does hiring your firm cost?

We handle overtime matters on a contingency basis: no fee unless we recover, and the statutes require the employer to pay reasonable attorney's fees on top of your wages in a successful case.

You can contact the Law Offices of Albert Goodwin by phone at 212-233-1233 or by email at [email protected].