It’s essential for employers in the state of New York to understand overtime laws so they can make sure they are paying their employees fairly for the work they have done.


Overtime Rules in NY

The overtime rules in New York are described in the New York State Minimum Wage Orders. However, these requirements are also in addition to the Federal requirements laid out in the Fair Labor Standards Act (FLSA). When there is a difference between the New York and Federal Overtime Rules, the employer must follow the rule that offers the most benefits to the worker.


The overtime requirement in New York is based on the hours worked within a given payroll week. So, if the employee has worked more than 40 hours in a week and they are not exempt, then they are eligible for overtime pay for any hours over 40. The employer is not permitted to average the hours of two or more weeks.


The law distinguishes between covered employees and residential employers (also known as “live-in” workers who reside at the job site or in the home of their employer).


  • Covered employees are eligible for one and a half times their regular “straight-time” hourly rate of pay for all hours over 40 in the payroll week.
  • Residential employees should receive one and a half times their regular “straight-time” hourly rate of pay for all hours over 44 in the payroll week.


(The term “straight-time” simply refers to the employee’s regular hourly wage.)


Unlike in some other states, there are no restrictions or overtime rules in New York that are based on working more than 8 hours per day or more than 5 days per week. So, an employee can be asked to work for a long day, but as long as they don’t exceed 40 hours worked in that week they will not be eligible for overtime.


Hours per week is calculated based on the work week as a fixed schedule of seven consecutive 24 hour days. It doesn’t have to start on Sunday or Monday, the work week can start on any day of the week and end seven consecutive days later. The work week must be a fixed schedule and cannot be changed from week to week.


One of the exceptions to this is hospital and residential care workers. They may have an agreement with their employers that they will work in fortnight periods of 14 days, rather than 7 day workweeks. Within this arrangement, they must be paid overtime pay within the FLSA requirement for any hours worked over 8 in one day or 80 in 14 days (whichever results in the greater number of overtime hours).


Calculating Regular Hourly Rate

The overtime rate is 1.5 times the regular rate of pay. This regular hourly rate must not be less than minimum wage. In 2017, the minimum wage is $7.25 per hour according to the US Federal Law. When it comes to New York law it ranges from $9.70 to $11 per hour depending on the location of the employee’s work site and the size of the employer if they work in New York City.


When it comes to calculating the regular hourly rate of pay for overtime, there are some payments that are not factored in. This includes:


  • Any payment for expenses incurred on the behalf of the employer.
  • Any premium payments for overtime work or premiums paid for work on weekends and holidays.
  • Any discretionary bonuses.
  • And gifts and bonus payments for special occasions.
  • Any payment for periods where no work is performed due to holidays, vacation or illness.  


The regular hourly rate of pay is calculated by dividing the total pay for employment (excluding the exceptions above) in any workweek by the total hours worked by the employee.


If the employee works at two or more different jobs for the same employer in a single workweek, then the regular rate for that week is the weighted average of the different rates. So, in order to determine the weighted average the earnings from all rates are added together and the total is divided by the total of hours worked at all jobs.


One Day Rest in Seven

New York Labor laws require certain employers to provide their employees with at least 24 hours of consecutive rest time in any calendar week. This means that if the employee has already worked 6 out of 7 days, they must have a day off on the 7th day.


This includes hotels, restaurants, mercantile establishments and factories – to find out which employers are impacted by this law read Section 161 of the New York State Labor Law.


The New York State Wage Theft Prevention Act

According to this act, an employer must present the employee a full statement of their earnings at the end of every pay period. The statement must show the rate of pay, the basis for that pay, the amount of overtime pay, any wage deductions and the gross and net wages paid.


If the employer does not provide this statement, this is a violation of the law and the employer could be liable for damages. Also, employers cannot announce that overtime work will not be paid unless it is authorized in advance. The employer is still obligated to pay overtime to workers for the hours they have worked.


The state and federal laws in New York provide for the right of the employee to overtime pay, so it’s crucial to make sure you understand how they work and how they apply to your business.