FREQUENTLY ASKED QUESTIONS

What is the FLSA?

Congress enacted the Fair Labor Standards Act in 1938 as a protective measure to shield employees from the oppressive practices of their employers. Specifically, the FLSA requires employers to pay you at or above the federal minimum wage rate of $7.25 an hour. New York State law additionally requires that employers pay you at least $10.50 to $12.00 per hour in NYC, $10.00 to $10.75 per hour in Westchester and Long Island, and $9.70 to $10.75 per hour throughout the rest of the State of New York. Further, employers must provide time-and-a-half pay for all overtime hours you work, which includes any hours you work in excess of 40 per a workweek. The FLSA also requires employers to maintain certain records of your hours worked and wages earned.

What is my FLSA status

Under the FLSA, employees are classified as either "exempt" or "non-exempt". Non-exempt employees are entitled to overtime pay, while exempt employees are not. Whether or not you are exempt generally depends on your salary, job type, job duties, and other additional factors. Exempt employees are usually paid a salary and are required to perform high-level "executive", "administrative", or "professional tasks". However, a job title or position description alone is not enough to make you fall under the exempt classification. If you are classified as exempt yet your job duties do not fall into any of the exempt categories, you may have been misclassified and may therefore be entitled to additional compensation.

• Salaried Employee

  Salaried employees are still often considered non-exempt and therefore protected under the FLSA. A salaried employee is one who receives a guaranteed minimum amount of money per workweek, regardless of whether or not their wages are expressed in terms of hourly pay. If you receive less than $23,600 per year, you are non-exempt and entitled to overtime benefits under the FLSA. If you receive more than $100,000 per year, you may be considered exempt. If your salary is anywhere between $23,600 per year and $100,000 per year, your exemption status depends on whether or not you typically perform exempt job duties. If you are unsure of your classification or believe you have been wrongfully classified as exempt, contact us today for a free consultation.

• Day Rate Employee

  Employers may pay you a daily rate under the FLSA, but that daily rate may not include any overtime pay. Therefore, if you work more than 40 hours a week and are paid a set daily rate, you are entitled to overtime pay for any additional hours worked. An employer may not claim that your overtime premium was included in your daily rate. Instead, that premium will be considered part of your normal daily rate, which will result in a larger overtime premium for you for any actual overtime hours worked. If you are being paid a daily rate and have been denied overtime pay, contact us today for a free consultation.

• Straight Time "Split-Day" Plan

  Employers often utilize a "split-day" plan, where they pay you a low straight time rate for less than a full day, and then pay you at an "overtime" rate for the remainder of the regular work day. While your average hourly rate for the entire day may even out, your weekly pay will not. Employers who do this are attempting to manipulate your overtime rate by setting an arbitrarily low straight time rate, and thereby paying you less than your due compensation. Courts have found that this type of scheme violates the FLSA. These "overtime" hours are not actually in excess of your regular work week, so they should be averaged into your straight time rate. If your employer has paid you on a split-day plan or has used some other scheme to manipulate and lower your earnings, contact us today for a free consultation.

• Piece Rate

  A piece rate payment system pays employees based on the number of "pieces" completed as opposed to the amount of hours worked. Even if you are paid based on a piece rate, you may still qualify as non-exempt under the FLSA. Accordingly, there are important standards that your employer must uphold. Your employer may not pay you less than minimum wage, on average, for your total weekly hours worked. You are also still entitled to overtime. Therefore, your employer must still maintain accurate daily time records of your hours worked. Piece rate systems often cause problems with determining hourly wages and overtime wages. It is your employer's responsibility to accurately determine these wages. If you think your employer has failed to properly compensate you under a piece rate system, contact us for a free consultation.

• Independent Contractor

  Employers will often attempt to misclassify employees as "independent contractors" in order to bypass the protections provided under the FLSA. Since independent contractors are exempt under the FLSA, by classifying an employee as an independent contractor, an employer can avoid all overtime pay. Therefore, it is important to independently determine whether or not you are an employee or an independent contractor. Independent contractors are considered to be their own employers. They have a right to control their own work. If your employer has authority over how your work is performed, then you are his employee, and not an independent contractor. There are a number of relevant factors that may help clarify whether you are an independent contractor or an employee, such as your opportunity for profit or loss, the amount of skill and independent knowledge required to perform your work, the duration of your working relationship, and the extent to which your work is an integral part of the employer's business. Courts will also look into the "economic reality" of your employment relationship, meaning that a worker who gains a large portion of their salary from an individual employer is likely to be considered an employee and not an independent contractor. If you have been wrongly classified as an independent contractor, you may be entitled to back pay, including overtime pay, penalties, interest, and attorneys' fees.

Am I exempt?

Your exemption status under the FLSA is based on your job duties, with some exceptions. If your primary duties do not include management, and you do not have the authority to either regularly direct work or hire and fire people or exercise other forms of independent discretion in regards to matters of significance, then you may be considered non-exempt. Exemption status is based on many independent factors and includes numerous exceptions. If you believe that you may have been wrongly classified as an exempt worker under the FLSA, please contact us.

Am I owed money?

By law, you are entitled to the federal minimum wage of $7.25 an hour, which is superseded by the New York minimum wage of $10.50 to $12.00 per hour in NYC, $10.00 to $10.75 per hour in Westchester and Long Island, and $9.70 to $10.75 per hour throughout the rest of the State of New York. If you are non-exempt under the FLSA, you are also entitled to time-and-a-half pay for all overtime hours, which is generally any hours worked in excess of 40 hours per workweek. You may also be entitled to additional compensation if your employer has failed to keep accurate records of your hours worked and wages earned.

"On-the-clock" vs. "Off-the-clock"

Employers may ask or have asked you to show up to work before your shift starts in order to perform job related activities. However, any job related activities should be considered work if the employer allows you do it and it benefits the employer. If your employer requires or permits you to work "off-the-clock" without payment, you are entitled to proper compensation. This similarly applies to work performed at home or outside of the place of work. Training time is also considered work time and should be compensated. If you have any questions as to whether or not you are entitled to compensation for the performance of "off-the-clock" job related activities, please contact us.

My job was reclassified. What may I be entitled to?

If your job was reclassified from a previously non-exempt position to an exempt position, you may now be entitled to overtime pay. However, exemption status is not based on job title alone. If you were wrongly classified as exempt, regardless of whether or not you have been reclassified, you may be owed compensation for past overtime hours worked.

Exempt vs. Non-Exempt Job Duties

Your exemption status typically depends on whether or not your job duties fall under what is considered "high-level work". High-level work is categorized based on the job duties typically associated with three different types of high-level employment: "executive" job duties, "professional" job duties, or "administrative" job duties.

• Exempt "Executive" Job Duties

  The Executive job duty exemption includes jobs where you are responsible for the regular supervision of two or more other employees, where management is a primary duty of your position, and you have significant input regarding the job status of other employees. The FLSA was created to protect your rights as an employee, so these job duties are interpreted strictly. Therefore, for the exemption to apply, supervision must be a normal part of your job. Management duties, as defined by the FLSA, can consist of: interviewing, selecting, or training employees; setting rates of pay and hours of work; maintaining production or sales records; appraising productivity; handling employee grievances; disciplining employees; determining work techniques; planning the work; apportioning work among employees; determining the types of equipment to be used in performing work; planning budgets for work; monitoring work for legal or regulatory compliance; providing for safety and security in the workplace.

• Exempt "Professional" Job Duties

  Exempt professional job duties consist of work which is predominately intellectual in nature, requires a specialized education, and involves independent discretion and judgment. This exemption may also cover creative professionals, such as actors or musicians. However, having a college degree does not automatically mean that your job is exempt. Often, the professional exemption requires an education beyond a college degree, although a similar level of advanced education achieved through other means may qualify. If you are unsure of whether or not you are exempt under the Professional exemption, please contact us for further assistance.

• Exempt "Administrative" Job Duties

  The administrative exemption applies when your job duties primarily consist of office or non-manual related work directly linked to the general business operation or management of the employer or the employer's customers. To be exempt, your primary duty must include the exercise of discretion and independent judgment pertaining to matters of significance.

• Positions That Are Commonly Misclassified

  Manager positions are commonly misclassified as exempt based on the position title. When applying the exemption test, it is important to ignore the job title and evaluate what your primary duties include. Often, the manager position consists of the same job duties as lower, non-managerial positions, but includes a shift from hourly pay to a salary. While your employer may call this a raise, a "raise" in title alone does not allow your employer to increase the number of hours you work while removing the benefit of overtime pay. This is an illegal tactic that employers often utilize to maximize profits by increasing your hours worked while effectively decreasing your hourly wage rate. This also commonly occurs with other positions, such as personal bankers and insurance claims adjusters, who have recently accumulated millions of dollars through legal action. Employers who utilize misclassifications in order to save on labor costs can be subject to back wages, taxes, interest, penalties, and attorneys' fees. If you hold one of these commonly misclassified positions or believe that your job may have been wrongly classified as exempt, you may be entitled to such back wages.

• Commonly misclassified positions:

  • Banking
    • Secretary
    • Teller
    • Call Center Specialist
    • Central Services Specialist
    • Courier
  • Restaurants and Food Services
    • Sous Chef
    • Line Cook
    • Short Order Cook
    • Expediter
    • Cashiers
    • Dishwasher
    • Shift Manager
    • Drive-thru Operator
    • Fast Food Cook
    • Barista
  • Retail
    • Assistant Manager
    • Cashier
    • Clerk
    • Customer Service
    • Inventory Associate
    • Loss prevention specialist
    • Sales Associate
    • Warehouse Associate
  • Oil Driller
    • Cleaner/Painter
    • Lease Hand
    • Floor Hand
    • Motor Hand
    • Derrick Hand
    • Assistant Driller
  • Offshore Tankerman
    • Entry level and graduate deckhands
  • Call Center Worker
    • Call Center Representative
    • Customer Service Representative
    • Sales Representative
  • Contractors
    • Apprentice
    • Assistant Project Manager
    • Construction Assistant
    • Painter

About Us

Fitapelli & Schaffer, LLP is a nationally recognized plaintiffs' class action firm located in New York City. Since its inception in 2008, Fitapelli & Schaffer has been firmly dedicated to the protection of employees from wage and hour violations. The firm has recovered millions of dollars for the thousands of clients it has represented in class action and individual lawsuits pertaining to such violations.