What are the laws for overtime pay in New York State? (disagreement with boss - details within)?

by **madison86** » Fri Nov 18, 2011 3:57 pm

I am having trouble determining if I am supposed to be receiving overtime pay (that is at least 1.5 times the rate of my base pay as per the federal law). I am 20 years old and work for an event coordinator/florist (a small business where under 5 people are employed) for $9 an hour in the state of New York. I have worked more than 40 hours in the past week, and since I have just started, I have not received my first paycheck yet.

I have talked to my boss about overtime and how she handles it and she believes that she is exempt from having to pay her employees extra for overtime because she does not use a payroll system to pay her employees. (She has never employed someone who has worked overtime before, so she is not sure, either.) She instead writes a direct check for the full amount and employees are required to pay for taxes at the end of the year via a 1099 form.

This does not make sense to me, as I believe I should be receiving at least time and a half for my overtime hours. I believe this has nothing to do with the 1099 form because, to my knowledge, I am not eligible for exemption from overtime pay laws federally under the Fair Labor Standards Act (FLSA). The federal law says:

"An employer who requires or permits an employee to work overtime is generally required to pay the employee premium pay for such overtime work. Employees covered by the Fair Labor Standards Act (FLSA) must receive overtime pay for hours worked in excess of 40 in a workweek of at least one and one-half times their regular rates of pay. The FLSA does not require overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, unless overtime hours are worked on such days.
The FLSA, with some exceptions, requires bonus payments to be included as part of an employee's regular rate of pay in computing overtime.
Extra pay for working weekends or nights is a matter of agreement between the employer and the employee (or the employee's representative). The FLSA does not require extra pay for weekend or night work or double time pay."
SOURCE: http://www.dol.gov/dol/topic/wages/overtimepay.htm

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Please help me!
The best answers are those that include sufficient links to official government websites citing the information that is being interpreted. Thank you for your help.

by **dodya** » Fri Nov 18, 2011 4:02 pm

FLSA is probably IRRELEVANT, this business is most likely to small to be covered by it....
see:
http://www.dol.gov/whd/regs/compliance/whdfs14.pdf

as an IC you are NOT covered by any labor laws...
http://labor.ny.gov/workerprotection/laborstandards/faq.shtm#1

are you mis-classified? that could be but until that issue is resolved the OT is a moot point because at this point in time it is not owed due to your IC status.....

you can ask for a determination from the IRS on your IC status by filing a SS-8
http://www.irs.gov/pub/irs-pdf/fss8.pdf

overtime requirements under NY law see:
http://labor.ny.gov/workerprotection/laborstandards/faq.shtm#1

by **lundie** » Fri Nov 18, 2011 4:18 pm

If you were legitimately a 1099 independent contractor, neither OT laws not minimum wage would apply. Without knowing just what your job is, hard to say if it's legit, but very likely not.

by **hagaleah** » Fri Nov 18, 2011 4:21 pm

If you were legitimately a 1099 independent contractor, neither OT laws not minimum wage would apply. Without knowing just what your job is, hard to say if it's legit, but very likely not.

she is trying to be clever, if you are a 1099 employee or contract. labor laws do not apply to you, they only apply if you a W-2 employee which she has told she you are not, is it legal? contact the NYS dept of labor and ask them

by **jorian23** » Fri Nov 18, 2011 4:25 pm

If you were legitimately a 1099 independent contractor, neither OT laws not minimum wage would apply. Without knowing just what your job is, hard to say if it's legit, but very likely not.

she is trying to be clever, if you are a 1099 employee or contract. labor laws do not apply to you, they only apply if you a W-2 employee which she has told she you are not, is it legal? contact the NYS dept of labor and ask them

a 1099 means you are a contract employee and do not fall under FSLA you are an independent contractor, your are more than likely misclassified but times are tough so tread lightly

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