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Exempt vs. Nonexempt: Do You Have a Wage & Hour Claim?


Every worker and employee in New York is guaranteed fair pay for fair work, no matter their profession. If this promise is unfulfilled by an employer, then the employee can use a wage and hour claim to seek deserved compensation. Complications can arise, though, when you get into the subjective idea of “fair pay,” beyond just what is established minimum wage. Furthermore, the situation gets even trickier when considering whether or not a worker is exempt or nonexempt.

Quick comparison of exempt vs. nonexempt:

  • Exempt: Under employment law definitions, an exempt employee must be paid using an annual salary agreement, not hourly wages. If you are an exempt employee, then you are given the same amount of pay each paycheck, regardless of the hours you put into work that pay cycle.
  • Nonexempt: For employees who gain the full protections of The Fair Labor Standards Act (FLSA), they are considered “nonexempt” and generally are paid an hourly wage. Each hour you work in a week is an hour paid with nonexempt status.

A key difference between exempt and nonexempt is the chance to earn overtime pay. Under FLSA guidelines, a nonexempt employee must be paid 150% normal hourly wages if they work more than 40 hours in a week. This is often where wage and hour claim disputes arise between an employer and an employee.

New York State Labor Law & Exempt Overtime

Nonexempt employees in New York are given overtime pay due to federal FLSA guidelines. This might seem like the door is shut for exempt employees who want overtime pay, but in New York, it is not that simple. There are some exempt workers in New York who do qualify for overtime due to New York State Labor Law requirements. This law requires qualifying exempt employees who work overtime to be paid at a rate equal to 150% of the New York’s current minimum wage for any hours of work beyond the 40th in any given work week.

For most exempt employees, overtime work will actually be paid at a rate much less than what they typically earn in an “hour” of salaried work. As of 2019, the minimum wage in New York City for “big employer” (11 or more employees)  is $15.00/hour and for “small employees” ( 10 or less) it is $13.500. For Long Island and Westchester County the minimum wage is $12.00 and for the remainder of New York State it is $11.10. The overtime pay rate per hour will be calculated at time and one-half. Despite this likely decrease in payment for work, it is more than what many other states offer to exempt employees who work overtime. It is not common for exempt workers to be given no overtime benefits in other states.

Should You File a Wage & Hour Complaint in New York?

Regardless of your status as an exempt or nonexempt worker in New York, you deserve to be paid fairly as it is described under state and federal law. When you know or suspect this is not happening, you need to take legal action to make things right. Not only will you be standing up for yourself, but you will also shed light on a situation that is likely bringing injustice to many others who need to find inspiration to speak up. You can be that hope for them!

If you are not paid fair wages or overtime pay in New York, you can demand compensation in the form of:

  • Back pay to make up for wages earned but not paid
  • Any costs you incurred due to nonpayment of your wages, like credit card interest
  • Liquidated damages

To discover your rights as a worker in New York, come to Schwartz Perry & Heller LLP and our team of respected employment lawyers. We are fearless in the face of strong oppositions that try to get away with cheating hardworking New Yorkers out of their wages and overtime pay. Our case result history includes several jury verdicts that ended with multimillion dollar awards given to our clients. See how we can help you by calling (646) 490-0221 or using an online contact form today.

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