Overtime

Employees who are entitled to receive overtime pay for working 40 hours in a work week are under the FLSA are non-exempt employees. They must be paid 1- ½ times their regular rate of pay. Under the Fair Labor Law Standards Act as well as the New York State law the employee’s regular hourly pay must not be less than the current state minimum wage.  The required minimum wage in N.Y.S is (effective 12/31/17) ranges from NYC - Small Employers (10 or less) $12.00 and NYC - Large Employers (of 11 or more) $13.00. 

Payments which are not part of an employee's regular hourly rate for overtime calculations are not included in the time and a half. This would be the following:

•   Payment for expenses incurred on the employer's behalf
• Premium payments for overtime work or the premiums paid for work on Saturdays, Sundays, and holidays;
• Discretionary bonuses;
• Gifts and payments in the nature of gifts on special occasions; and
• Payments for periods when no work is performed due to vacation, holidays, or illness.

An employee's weekly earnings may be paid on a piece rate (rate of payment for piecework), salary, commission, or other way, but the overtime pay due must be figured out based on the average hourly rate of pay derived from these earnings.