Legal Question in Employment Law in New York
Am I due back pay?
When I began working for my current employer I was a cook(not able to hire or fire other employees etc.) and clocked in on the first day. The employer told me not to clock in and gave me a salary for 50 hours worked each week. I worked 70-90 hours for many weeks.The employer never payed overtime. I was promoted to Chef and given a raise. The employer told me that I am exempt from overtime because I am able to hire and fire employees and I am the manager of my department. That said here are the questions: 1)Am I exempt or non-exempt from overtime? I have kept a record of all my hours worked and I know for a fact that my employer has not. I currnetly work 70-90 hours per week. I also perform the duties for which I am in management over for well over 90% of the time. And I still document my hours. 2)Do my ''written down hours'' count as proof of hours worked? 3)Is there a time limit on how long I have to respond to this matter?
2 Answers from Attorneys
Re: Am I due back pay?
Unless you had an agreement regarding overtime you are not entitled to payment for it. If your salary was for 50 hours you should have demanded payment for overtime.
Re: Am I due back pay?
Based on what you describe, I can't say for sure whether you are exempt or nonexempt. You mentioned that you were promoted and that your employer said you don't get overtime because you are a manager and have the authority to hire and fire employees. If you do now have this authority, it is quite possible you are exempt--there are a number of factors the law considers in determining whether you are exempt or not, and managerial duties, including authority to hire and fire, help show that someone is exempt and not entitled to overtime. But if you did not have these duties prior to the promotion it is possible you could be entitled to receive overtime pay for hours worked prior to your promotion. The fact that your employer told you not to clock in is suspicious--if you were nonexempt when you started, you (and your employer) should have been keeping track of your time.
There is a time limit--I am not sure offhand what it is, but off the top of my head (and I stress I am not sure about this), I think you have 2 years under federal law (3 years if the violation was "willful"). I am not sure what the time period is under state law--I can check this for you if you like, and can confirm the federal time limit.
Please give me a call if you want to discus any of this further. My number is 212 867-4754,
Chris Edelson
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