- According to reporting by ProPublica, more than $203 million in wages was stolen from 127,000 New York workers over a recent five-year period.
- Wage theft can happen in any industry, but it’s especially problematic in restaurants, warehouses, logistics, healthcare, retail, construction, and grocery and convenience stores.
- Every worker deserves to be paid what they have rightfully earned. It’s the law.
Wage theft is a broad term that covers the many ways employers fail to pay workers everything they’re owed. The Fair Labor Standards Act sets federal rules for minimum wage and overtime, and New York and other states have more worker-friendly laws.
Whether it’s pay frequency or not paying overtime, here are five common ways employers violate the law.
1. Paying you every other week when you’re supposed to receive weekly paychecks
If your job involves physical activity, New York law may require your employer to pay you on a weekly basis. A lot of employers pay workers every other week, which is illegal in some situations.
The requirement is known as Section 191, named for the provision of the New York Labor Law where it’s codified.
The idea behind the law is simple: the sooner you get money in your pockets, the sooner you can use it to pay your bills, save it, or whatever else you want to do with it. You did the work, you earned your pay, and you shouldn’t have to wait an extra week (or longer) to get it.
Physical activity is the key element, but it doesn’t have to take up all your time or be strenuous. According to the New York Department of Labor, the weekly pay requirement applies if you spend at least 25% of your time performing basic types of physical labor.
Some examples of workers entitled to weekly paychecks in New York include:
- Warehouse and logistics workers
- Retail associates
- Baristas
- Cashiers
- Restaurant and fast-food workers
- Security guards
- Janitors
A good rule of thumb is that if you spend more than quarter of your time on your feet, Section 191 may require your employer to pay you every week. Some of the types of physical activities that can qualify include:
- Standing
- Walking
- Carrying items
- Lifting objects
- Moving things
- Cleaning
- Operating machinery
And since a landmark ruling in 2018, courts have found that you have the right to file a lawsuit if your employer violates Section 191. Before then, your only recourse was to file a complaint with the Department of Labor.
2. Not paying you for all the time you work
A basic principle of wage and hour law is that employees must be paid for the time they spend working. And work time can include many types of tasks that directly relate to your job.
For example, you may have to put on a uniform or protective equipment before your shift. Or you may work in a hospital and have to receive patient information from the providers who were on the shift before you. All of that takes time – your time.
Some other examples that may count as work time that must be paid include time spent:
- Driving from one job site to another
- Waiting near a delivery vehicle while it’s loaded
- Waiting to pass through an anti-theft security screening after a shift
Depending on the job, you may also be entitled to pay for time spent waiting for work to do, such as a restaurant server who waits for customers to arrive.
3. Not paying you for overtime
Under both federal and New York law, employees who are classified as “overtime non-exempt” are entitled to 1.5 times the regular rate of pay for any time worked above 40 hours per week. This is important because the vast majority of workers in New York are considered non-exempt. If you fall into this category, here are some ways your employer might fail to pay you the overtime you’re owed:
- Misclassifying your position as exempt from overtime requirements. The most common reason you may be exempt from federal overtime requirements is if you work in certain executive, administrative, professional, sales, or computer-related roles. Employees of seasonal or recreational businesses, some radio or television employees in small markets, and certain employees involved in interstate transportation are also exempt. That said, most workers in New York are non-exempt, and therefore eligible for overtime pay.
- Paying overtime based on a two-week pay period, rather than on a week-by-week basis. The overtime requirement is triggered if you work more than 40 hours in one week, not if you work more than 80 hours in two weeks.
- Saying you didn’t get advance permission to work overtime. Your employer may speak with you or even discipline you if you work overtime hours without authorization, but the employer may not refuse to pay. Remember, if you work, you must be paid.
- Calculating overtime incorrectly. Overtime pay should be 1.5 times your regular rate, which means it’s important to include everything that’s supposed to go into the calculation. In addition to hourly earnings, some types of extra pay counts toward your regular rate, such as an attendance bonus or a safety bonus for having a certain number of days without a workplace injury.
- Assuming federal and New York overtime requirements are the same. Federal law requires overtime for eligible employees if you earn less than $844 per week, or about $43,900 per year. But in New York state, that figure is $1,124.20 per week (or $5,8458.40 per year). In New York City and nearby counties, it’s $1,200 per week (or nearly $62,500 per year).
If your employer didn’t correctly pay you overtime, New York law lets you recover that money going back six years. Under federal law, the recovery period is either two or three years, depending on whether your employer willfully broke the law.
4. Not giving you a fair schedule (if you’re a retail, fast food, or utility worker in New York City)
New York City is one of a few places around the country that requires certain employers to post schedules for shift workers a few days in advance, to give them an opportunity to plan for things like childcare, transportation and personal appointments.
If you work in retail, fast food, and some utility positions, New York City’s Fair Workweek Law requires your employer to finalize your schedule at least several days in advance. Retail and utility businesses must post the schedule 72 hours in advance and fast food businesses have to release it at least 14 days out, with some exceptions for small retail and fast food employers. A business may not add a shift to your schedule or remove one at the minute, except in emergencies, and you are free to decline additional shifts.
If you work in fast food, you are also protected from having to work a closing shift one day and an opening shift the next day (sometimes called “clopening”), by being guaranteed 11 hours off in between, unless the employer pays a $100 premium and gets your written consent. That’s to ensure that when you have back-to-back shifts, you get time for yourself in between.
The law also prohibits on-call shifts. Those happen when your employer requires you to call to check if you should come to work, perhaps because someone called out sick or the business is unexpectedly swarming with customers.
Last-minute scheduling issues are stressful. When you don’t know your work schedule ahead of time, it’s almost impossible to plan ahead. That’s why the Fair Workweek Law includes a variety of penalties for employers who break the law, depending on the violation.
5. Misclassifying you as an independent contractor
In general, wage laws apply only when you’re classified as an employee, rather than an independent contractor. So if you’re an employee who works more than 40 hours a week, you may be entitled to overtime, but if you’re an independent contractor you wouldn’t.
Being classified as an independent contractor also means you don’t have a right to paid sick days and family leave, workers’ compensation (if you’re injured on the job), unemployment insurance, or employer-paid contributions to Social Security and Medicare.
Misclassification as an independent contractor can have serious financial consequences, and it affects lots of workers. In 2022, the Economic Policy Institute examined 11 occupations that are prone to misclassification and found it costs workers between $4,558 and $18,053 per year. They include:
- Construction workers
- Truck drivers
- Janitors and cleaners
- Home health and personal care aides
- Retail sales workers
- Housekeeping cleaners
- Landscaping workers
- Customer service reps and call center workers
- Security guards
- Light truck delivery drivers
- Manicurists and pedicurists
A separate analysis from the National Employment Law Project in 2022 found that 21 million people work in industries where misclassification is prevalent.
Your employer may intentionally misclassify you as an independent contractor to avoid having to provide the benefits and protections it would be required to offer if it classified you as an employee. But it’s also possible that a well-meaning employer finds it simpler to pay you as an independent contractor and not have to handle the payroll and other paperwork that comes with classifying you as an employee.
A business can’t just declare you to be an independent contractor. Before they do that, they have to examine several factors. If you operate as an independent business for yourself and offer your services to the general public, you might be an independent contractor.
On the other hand, if a company tells you when, where, and how to complete your work, and restricts you from working for its competitors, you’re more likely to be considered its employee.
If you think your employer may be committing wage theft from its employees, an experienced labor and employment attorney can help you assert your rights. Contact us today for a confidential consultation.
