Working More Than 40 Hours per Week

• What is “overtime”?
  • Under the FLSA, working “overtime” usually means working more than 40 hours per week.
  • New York’s Hospitality Wage Order addresses the “overtime” rules and regulations that apply to the hospitality industry in New York.  Under the Hospitality Wage Order, working “overtime” also means working more than 40 hours per week.
• Does my employer have to pay me “overtime” if I work more than 40 hours per week?
  • Normally, any qualified employee who works more than 40 hours in a week is entitled to be paid “overtime” under the FLSA.  Employees working in some jobs, however, are subject to different rules regarding “overtime” under the FLSA.
  • Under the Hospitality Wage Order, employers participating in New York’s hospitality industry are generally required to pay qualified employees “overtime” if they work more than 40 hours in a week.
• How much should I be paid for “overtime”?
  • Under both the FLSA and the Hospitality Wage Order, a qualified employee who is paid on an hourly basis is entitled to be paid an “overtime rate” of one and one-half times the employee’s regular rate of pay.
  • If I receive tips, will my “regular rate” be higher?
    • Under either the FLSA and the Hospitality Wage Order, an employee’s “regular rate” is not increased by an employee’s tips.
• Does my employer have to pay me “overtime,” even if I get tips from customers?
  • Under both the FLSA and the Hospitality Wage Order, a qualified employee is entitled to be paid “overtime,” regardless of whether or not the employee receives tips.  Under some circumstances, however, an employer is permitted to incorporate an employees tips into the calculation of the employee’s overtime rate.  See the questions about tips for additional information.
• Should I still get paid “overtime” if I am not a citizen?
  • Courts have found that qualified employees can recover unpaid overtime wages for work performed, even if the employee is not a U.S. citizen or is an undocumented worker.  In other words, courts have found that an employee’s immigration status is not relevant to an employee’s right to recover unpaid overtime wages for work performed.
• What laws protect me when I work over 40 hours in a week?
  • The FLSA, the NYLL, and the supporting regulations protect qualified employees when they work more than 40 hours in a week.
• Are there any exceptions to the overtime rules?
  • Workers must be considered to be “employees” to be entitled to overtime pay under the FLSA, the NYLL, and the supporting regulations.  Workers who are considered to be “independent contractors” are not entitled to be paid overtime under these laws.  See the questions about the difference between employees and independent contractors for additional information.
  • Under the FLSA and New York’s Hospitality Wage Order, some employees are considered to be “exempt” from overtime pay if they are employed in an executive, administrative, or professional capacity.  Some sales employees are also considered to be “exempt” from overtime pay under these laws.
    • The determination of whether an employee is considered to be “exempt” or not under these laws is made on a case-by-case basis.  There are no published lists of jobs that are considered to be “exempt.”  An experienced wage and hour lawyer, however, can examine past cases and discuss with you whether you should be classified as an exempt or nonexempt employee.  See the wage and hour FAQ about exemptions for additional information.