Unpaid Overtime Lawyer in New York
Recover Your Wages
You worked the extra hours. You stayed late, came in early, answered emails from home, and skipped breaks. Your paycheck should reflect that — but it does not. If your employer is not paying you overtime, they are breaking the law. And in New York, the penalties for wage theft are severe.
At Joya Law Firm, we represent New York employees who have been denied the overtime pay they earned. Founded by attorney Kamran Joya, our firm holds employers accountable under both federal law and New York’s employee-protective wage statutes — which provide some of the strongest overtime protections in the country.
How Overtime Pay Works Under Federal and New York Law
Two overlapping laws govern overtime in New York: the Fair Labor Standards Act (FLSA) at the federal level and the New York Labor Law (NYLL) §§650–665 at the state level. When both laws apply, your employer must follow whichever one is more favorable to you. In New York, that is almost always the state law.
The Basic Rule
Both the FLSA (29 U.S.C. §207) and New York Labor Law require employers to pay non-exempt employees one and one-half times (1.5x) their regular rate of pay for every hour worked over 40 in a workweek. This is not optional. It is not a benefit or a perk. It is a legal requirement.
Your “regular rate” is not always just your hourly wage. It includes commissions, non-discretionary bonuses, shift differentials, and other forms of compensation. Employers frequently miscalculate the regular rate — either accidentally or deliberately — resulting in lower overtime payments than what the law requires.
New York’s Spread-of-Hours Pay
New York has an additional protection that does not exist under federal law: spread-of-hours pay. Under 12 NYCRR Part 142, if your workday spans more than 10 hours (from the time you start to the time you finish, including breaks), your employer must pay you an extra hour at the minimum wage rate — regardless of how many hours you actually worked. This applies to employees earning the minimum wage or close to it.
Many employers either do not know about this requirement or deliberately ignore it. If your shifts regularly exceed 10 hours, you may be owed significant back pay.
Who Is Entitled to Overtime Pay in New York
The default rule is simple: you are entitled to overtime unless your employer can prove you are exempt. The burden is on the employer — not you — to establish that an exemption applies.
Exempt vs. Non-Exempt Employees
Exempt employees are excluded from overtime requirements. To qualify as exempt under federal law, an employee must meet both a salary threshold and a duties test:
Salary Threshold:
- Under the FLSA, the current federal salary threshold for the “white collar” exemptions is $844 per week ($43,888 per year) as of 2024. This is scheduled to increase.
- Under New York law, the salary threshold for executive and administrative exemptions in New York City is currently $1,125 per week ($58,500 per year) — significantly higher than the federal standard.
Duties Test:
Meeting the salary threshold alone does not make you exempt. Your actual job duties must also fall within one of the recognized exemption categories:
- Executive exemption — you manage a department or subdivision, supervise at least two full-time employees, and have genuine authority over hiring and firing
- Administrative exemption — you perform office or non-manual work directly related to business operations and exercise independent judgment on significant matters
- Professional exemption — your work requires advanced knowledge in a field of science or learning, typically obtained through prolonged education
- Outside sales exemption — you regularly work away from the employer’s premises making sales or obtaining orders
- Computer professional exemption — you work as a systems analyst, programmer, or software engineer performing specific technical duties
If your employer classified you as exempt but your actual duties do not match the exemption requirements, you have been misclassified — and you are owed overtime for every hour over 40 you worked.
Common Employer Overtime Violations
Overtime theft is one of the most widespread labor violations in New York. These are the tactics employers use most frequently:
Misclassifying Employees as Exempt
This is the single most common overtime violation. Employers give workers an “exempt” title — assistant manager, coordinator, analyst — and a salary, then assume they do not have to pay overtime. But the title does not determine exemption status. The duties test does. If your primary job duties involve routine tasks rather than genuine management or independent judgment, you may be non-exempt regardless of your title.
Misclassifying Employees as Independent Contractors
Some employers classify workers as independent contractors (1099) instead of employees (W-2) to avoid overtime obligations entirely. Under both New York law and the FLSA, the classification depends on the nature of the working relationship — not what the employer calls it. If your employer controls when, where, and how you work, you are likely an employee entitled to overtime.
Off-the-Clock Work
Employers who require or permit employees to work before clocking in, after clocking out, or during unpaid breaks are violating overtime laws. Common examples include:
- Setting up or closing a retail store before or after your scheduled shift
- Answering work emails, calls, or messages from home
- Completing paperwork or reports after punching out
- Attending mandatory training or meetings without pay
- Putting on or removing required safety equipment (donning and doffing)
If the employer knows or should know that you are working, those hours count.
Averaging Hours Across Workweeks
Some employers “average” hours across two-week pay periods. If you work 50 hours one week and 30 the next, they pay you for 80 straight-time hours and claim you do not qualify for overtime. This is illegal. Overtime is calculated on a single workweek basis — not averaged across pay periods.
Offering Comp Time Instead of Overtime Pay
Private employers in New York cannot offer compensatory time off (“comp time”) instead of overtime pay. While comp time is permitted for certain government employees, private-sector employers must pay overtime in wages. An employer who says “take Friday off instead” when you worked 48 hours this week is violating the law.
Tip Credit Violations
In industries where tipping is common — restaurants, hospitality, personal services — employers may improperly use the tip credit to reduce overtime pay. Under New York law, the tip credit can only be applied to the first 40 hours. Overtime must be calculated on the full minimum wage, not the reduced tipped wage. Wage theft through tip credit manipulation is rampant in New York’s restaurant industry.
Statute of Limitations: New York vs. Federal Law
How far back you can recover unpaid overtime depends on which law you file under:
| Law | Statute of Limitations | Back Pay Recovery Period |
|---|---|---|
| FLSA | 2 years (3 years for willful violations) | 2–3 years of unpaid wages |
| New York Labor Law | 6 years | 6 years of unpaid wages |
This is a massive difference. Under the FLSA alone, you could recover two to three years of unpaid overtime. Under New York Labor Law, you can go back six full years. This is one of the longest recovery periods in the country and one of the reasons New York’s overtime laws are considered among the most employee-friendly.
The clock starts running from the date of each underpayment — not the date you left the job. You do not have to quit or be fired to file a claim. Current employees can pursue unpaid overtime claims while still employed.
Damages You Can Recover in a New York Overtime Case
New York law provides powerful remedies for unpaid overtime. If your employer violated overtime requirements, you may be entitled to:
- Unpaid overtime wages — every dollar of overtime you earned but were not paid, going back up to six years
- Liquidated damages — under NYLL §198, you are entitled to 100% liquidated damages, effectively doubling your recovery. If you are owed $30,000 in unpaid overtime, you may recover $60,000. Under the FLSA, liquidated damages are also available unless the employer can prove the violation was in good faith.
- Prejudgment interest — additional interest on the unpaid wages from the date they were due (note: in New York, you can recover either liquidated damages or prejudgment interest, not both, for the same period)
- Attorneys’ fees and costs — your employer pays your legal fees if you win, which means pursuing your case does not come out of your recovery
- Wage Theft Prevention Act penalties — if your employer failed to provide the required annual wage notice or pay stubs, additional penalties of up to $5,000 per employee apply under the NY Wage Theft Prevention Act
The combination of the six-year lookback period and 100% liquidated damages makes New York overtime cases among the most valuable in the country for employees.
Class and Collective Actions for Overtime Claims
If your employer’s overtime violations affected multiple employees — which they usually do, because wage policies tend to be company-wide — you may be able to pursue a collective action under the FLSA or a class action under New York Labor Law.
FLSA Collective Action
Under the FLSA, similarly situated employees can join a single lawsuit by filing written consent forms. This is called an “opt-in” collective action. The advantage is efficiency: one case, one set of discovery, one trial — but with the impact of dozens or hundreds of claims.
New York Class Action
Under New York law, a class action operates on an “opt-out” basis — meaning all affected employees are automatically included unless they choose to exclude themselves. This typically results in larger classes and greater pressure on employers to settle.
Both mechanisms serve the same purpose: holding employers accountable for systemic wage theft. If your employer cheated you out of overtime, chances are they did the same to your coworkers. A collective or class action amplifies your claim and increases the cost of non-compliance for the employer.
How Joya Law Firm Handles Unpaid Overtime Cases
Our process is straightforward:
Free Case Evaluation
We review your pay stubs, work schedule, job duties, and employment records to determine whether you have been denied overtime pay. We identify which exemptions (if any) your employer may claim — and whether those exemptions actually apply.
Demand and Negotiation
In many cases, a demand letter backed by specific legal analysis is enough to prompt a settlement. Employers facing six years of back pay plus liquidated damages have strong incentive to resolve claims quickly.
Filing the Lawsuit
If your employer refuses to pay what they owe, we file suit in federal or state court. We pursue every dollar of unpaid overtime, liquidated damages, and attorneys’ fees the law allows.
Collective or Class Action
If the violations are systemic, we evaluate whether a collective or class action is appropriate and pursue it aggressively.
Joya Law Firm represents employees exclusively — we do not represent employers, and we never will. When you work with us, there is no ambiguity about whose interests we protect.
Protecting Yourself Against Retaliation
It is illegal for your employer to retaliate against you for asserting your right to overtime pay. Under both the FLSA and New York Labor Law, you are protected from termination, demotion, schedule changes, or any other adverse action taken because you filed a wage complaint, participated in an investigation, or consulted with a lawyer.
If your employer fires you or takes other action against you for pursuing unpaid wages, you may have an additional claim for wrongful termination or retaliation — with its own set of damages.
Frequently Asked Questions (FAQ)
How do I know if I am entitled to overtime pay in New York?
If you are a non-exempt employee and you work more than 40 hours in a workweek, you are entitled to overtime pay at 1.5 times your regular rate. The default is that all employees are non-exempt. Your employer bears the burden of proving that an exemption applies based on both your salary level and your actual job duties — not your job title.
My employer says I am salaried and exempt from overtime. Is that true?
Not necessarily. Being paid a salary does not automatically make you exempt from overtime. You must also earn above the applicable salary threshold AND perform duties that genuinely fall within a recognized exemption category (executive, administrative, professional, outside sales, or computer professional). Many salaried employees are misclassified and are owed years of unpaid overtime.
How far back can I recover unpaid overtime in New York?
Under New York Labor Law, you can recover unpaid overtime going back six years from the date you file your claim. Under the FLSA, the lookback period is two years (three years for willful violations). Because New York’s statute of limitations is longer, most claims are filed under state law — or under both state and federal law simultaneously.
What are liquidated damages in an overtime case?
Liquidated damages under NYLL §198 are an additional amount equal to 100% of your unpaid wages — effectively doubling your recovery. If your employer owes you $25,000 in unpaid overtime, liquidated damages bring your total to $50,000. The FLSA also provides for liquidated damages unless the employer can demonstrate good faith and reasonable grounds for believing the violation was lawful.
Can I file an overtime claim if I still work for the employer?
Yes. You do not need to quit or be fired before filing a claim. The law protects you from retaliation for asserting your wage rights. That said, it is wise to consult with an employment lawyer before taking action so you can document your situation and prepare for any response from your employer.
What is spread-of-hours pay?
Spread-of-hours pay is a New York-specific requirement. If the length of your workday — from start time to end time, including breaks — exceeds 10 hours, your employer must pay you one additional hour at the minimum wage rate. This applies even if you did not work the entire span. Many New York employers fail to pay spread-of-hours, especially in the retail, restaurant, and healthcare industries.
Can I join a class action for unpaid overtime?
Yes. If your employer’s overtime violations affected multiple employees, you may be able to participate in a collective action (under the FLSA) or a class action (under New York law). These cases allow groups of employees to pursue claims together, which increases efficiency and puts greater pressure on the employer to resolve the matter. Contact Joya Law Firm to find out whether your case qualifies.
Take the Next Step
Every week that passes without action is another week of unpaid wages that may fall outside the statute of limitations. If your employer is not paying you for overtime, you have the right to recover what you earned — plus liquidated damages that can double your recovery.
Joya Law Firm represents employees in unpaid overtime cases across New York City — Manhattan, Brooklyn, Queens, the Bronx, and Staten Island — and throughout New York State. We work on a contingency basis for many wage and hour cases, meaning you pay nothing unless we win.
Book a Consultation or call us at 415-302-9437 to speak with an unpaid overtime lawyer in New York today.