NORTH CENTRAL WASHINGTON RESTAURANT EMPLOYEES RECEIVING $96,995 

• Three restaurants owned by a single employer paid their employees a flat hourly wage regardless of how many hours they worked, resulting in overtime violations.
• This case was likely NOT decided based on the creative duties exemption. 

SEATTLE-AREA RESIDENTIAL CARE COMPANY PAYING $222,426 TO 19 EMPLOYEES FOR OVERTIME VIOLATIONS.

• The company employs health care workers to provide round the clock care to residents, yet the employer failed to pay the employees for all the hours worked, instead deducting 8 hours for "sleeping" time even if the employee did not sleep.
• This case was the second time this company was found in contravention of the FSLA. It was also fined $17,442 in civil penalties.
• This case COULD have been decided on the creative duties test depending upon the professional qualifications of the employees.

TACOMA PROPERTY MANAGEMENT COMPANY TO PAY $255,793 IN BACK WAGES TO EMPLOYEES

• Workers were not paid the overtime premium for hours worked over 40 hours per week.
• An argument COULD have been made that some of those employees were exempted because they were managers and technicians. 

RESIDENTIAL HOME CARE COMPANY PAYING $213,461 TO 26 EMPLOYEES

• The company employs health care workers to people who require care in their homes.
• The employer paid a flat rate per day regardless of how many hours the employee worked.
• This case COULD have been decided on the creative duties test depending upon the professional qualifications of the employees.

RESEARCH STRATEGY

CALIFORNIA LAW

• To be considered exempt in California, a creative professional must be primarily engaged in an occupation commonly recognized as artistic, meaning “Work that is original and creative in character in a recognized field of artistic endeavor (as opposed to work which can be produced by a person endowed with general manual or intellectual ability and training), and the result of which depends primarily on the invention, imagination, or talent of the employee or work that is an essential part of or necessarily incident to any of the above work”.
• They also must produce work that is "predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time".
• Overtime in California is defined as any hours worked over 8 hours per day and 40 per week.
• State law requires employers to track the start and end time from the beginning of the shift, meal break start and end, to end of the shift for nonexempt employees; From these time records, the employer will then count the hours worked each workday and workweek.
• Under California law, overtime is paid at a rate of one and one-half times the employee's regular rate of pay for all hours worked in excess of 8 hours, up to and including 12 hours in any workday, and for the first 8 hours worked on the seventh consecutive day of work in a workweek.
• They must double the employee's regular pay rate for all extra hours worked of 12 hours in any workday and for all extra hours worked of 8 hours on the seventh consecutive day of work in a workweek. For instance, if an employee worked all seven days of the workweek and worked 10 hours on the seventh day, the first 8 hours are paid at a 1.5x rate and the remaining are paid at the 2x rate.
•  California law requires that overtime wages be paid no later than the regularly scheduled payday of the payroll period following that in which overtime was earned. While the law permits the delay of overtime pay by one payroll cycle, any straight time hours worked must be paid on the regular payday of the payroll period in which they were earned.
• Exempt employees may be required to work more than 40-hours per week without overtime, rest, or meal breaks. To be classified as exempt, the employee must be primarily engaged in the creative activity (generally, this means dedicate about 50% or more of their time to creative duties), regularly and customarily exercise discretion and independent judgment on the job and earn a salary equivalent to at least twice the state minimum age for full-time work ($49,920 as of January, 2019 for most, for employers with 25 or fewer employees, $45,760).
• Regarding commissions, employees who earn more than 1.5 times the minimum age and earn more than half of their compensation from commissions may be exempt from overtime as well.
•  California’s criteria for exempt employees are similar to those in the Fair Labor Standards Act (FLSA), with additional requirements and unique exceptions. For example, a professional that would otherwise be exempt under the FLSA, may not be exempt if they are subject to frequent docking of pay for productivity or performance issues.

REPERCUSSIONS

• Employers who mis-classified employees as exempt may have to pay damages including unpaid overtime, minimum wage violations, missed rest breaks, missed meal breaks, interest, legal fees, and court costs. By federal law, the employee may seek double damages.
• The most common penalties are unpaid overtime and legal costs and attorney fees the employee incurred while pursuing legal action. The employer may also suffer penalties of $100 or $200 per pay period in which the law was violated, payable to the State of California. In some situations, the employee can recover up to 25% of it.
• If meal breaks and rest periods were not provided, the employer has to pay one extra hour of pay at the employee’s regular hourly rate. If the employee misses multiple rest or meal breaks, they can reclaim up to one extra hour per workday for their missed rest periods and an additional one hour per workday for their missed deal breaks. In 2007, the California Supreme Court classified this as a premium, not penalty, meaning that the claim can be made for a period of up to three years.
• If the employer failed to keep proper records of the employee journey, they may have to pay a penalty pay stub, depending on the number of pay periods the violation lasted. "For the first pay stub violation, the employee is entitled to a $50 penalty and then $100 per pay period for every violation after that, up to $4,000". This is penalty is enforced when the employee is not sure how much back pay they are entitled due to the employer’s mistake.
• If the employer willfully fails to pay wages on time, they can be subject to a waiting time penalty. If an employee has been deprived of their full pay due to being mis-classified as exempt, they may be entitled to receive this penalty as well, up to 30 days of the employee’s wage.
• Cause of action accrued on each payday and employees generally have three years to make a wage claim under California law, starting from the first wage legally due.
• Some claims may face a shorter deadline, such as a claim for the breach of an oral contract must be filed within two years. Meanwhile, a claim based on a breach of a written contract may be pursued as late as four years after it began to accrue.
• To move to a class action in California, the plaintiffs’ burden is not to merely show that some common issues exist, but to show that common issues predominate. Class actions are more common with executive and administrative exemptions.

STATUTE OF LIMITATIONS FOR WAGE AND HOUR CLAIMS IN CALIFORNIA

• Waiting time penalties: 3 years 
• Wage statement penalties: 1 year
• Meal and rest premium pay: 3 years  
• Penalties for Violation of Wage Order and Certain Labor Code Sections: 1 year
• Penalty for Failure to Provide Timely Records and Inspection: 1 year
• PAGA penalties: 1 year
• Reimbursement of Employee Business Expenses: 3 years or 4 years under the Unfair Competition Law (UCL).
• Unpaid wages: 3 years or 4 years under the UCL
• Unpaid overtime: 3 years or 4 years under the UCL
• Unfair competition: 4 years

EXAMPLES

• In 2006, Dani Hoenemier, a technical writer for Sun Microsystem sued the company claiming that he was due overtime. In 2008, the case was certified as a class action, meaning that Hoenemier could now pursue the lawsuit on behalf of all salaried technical writers who worked for sun since 2002.
• Sun argued that it was typical to classify technical writers as exempt, saying that writers are well-paid, professional employees who are legally exempt from overtime rules because they are highly skilled, work independently and meet other criteria spelled out in the law.
• Part of the case rested on the argument that technical writers do not exercise discretion or independent judgment. In 2010, 157 writers had joined the lawsuit, which was finally settled for $5 million, approximately $21,000 from the settlement. The exact amount is determined by the number of hours worked and how long the worker had been with the company, according to lawyers for the writers.
• Since the lawsuit, companies such as Oracle, modified their policies to allow technical writers to receive overtime pay.
• In 2018, the California Supreme Court changed the rules for independent contractors, including freelance writers. The ruling determines that to classify someone as an independent contractor, businesses must show that the worker is free from the control and direction of the employer; performs work "that is outside the hirer’s core business"; and customarily engages in an independently established trade, occupation or business. This definition work could also affect other classes, such as minor league baseball players, as pointed out by the New York Times.
• In 2019, Target was hit with a lawsuit, where the plaintiff claims that, despite being employed as an “Executive Team Leader-Human Resources”, most of his duties were not in the administrative sphere, and therefore, could not classify him as exempt.
•  Activision Blizzard was also sued by its artists for mis-classifying them as exempt under the “creative” title. The artists claimed that this classification was inappropriate, considering that the activities performed didn’t require creative input on their end. The case was settled for $1.5 million.

Illinois Law

• In 2010, the Illinois Wage Theft Enforcement Act was signed, amending the Illinois Wage Payment Collection Act (IWPCA), in order to strengthen employee rights in wage disputes. The act enables The Illinois Department of Labor (IDOL) to adjudicate small wage claims, for employees who prevail on IWPCA to recover attorney’s fees and costs and giving employees the right of civil action in response to an employer's alleged retaliation for complaints about disputed wages, with attorneys' fees available to victorious claimants.
• When it comes to exemptions, Illinois mostly follows the FLSA requirements for “creative professionals”, with a few exceptions that may apply: individuals working for employers with less than four employees, not including the parents, spouse, children, or other member of the employer’s immediate family and individuals working for religious organizations are exempt from minimum age and overtime requirements.
• Unless exempt, Illinois labor laws require employers to pay employees overtime at a rate of 1½ time their regular rate when they work more than 40 hours in a workweek and to give each employee at least 24 hours rest in every week calendar.
• Illinois law requires employers to permit employees who are to work 7½ continuous hours or more to take a meal period of at least 20 minutes. Unlike California, the meal period may be unpaid and it must be given to an employee no later than 5 hours after beginning work. Illinois also does not have a law regarding breaks other than meals, therefore, federal laws apply.
• Professional employees (such as creative types), covered under the FLSA Act, working for non-profit corporations, may receive a weekly wage rate lower than those working on for profit corporations.
• One difference from the FSLA, is that under the Illinois law any employer that has one or more gainfully employed employees is covered under the law. (The Federal Law requires that the employer have a gross income of $500,000 irrespective of the number of employees.) The Illinois law also requires a different minimum wage. (S7)
• Illinois law also required exempt employees and commissions to be paid monthly as opposed to non-exempt employees who can paid bi-monthly (both provisions can be modified by agreements).
• The IWPCA also extends the time for a claim. A lawsuit under the IWPCA can be filed up to five years after the violation, if there is no written agreements and up to 10 if the contract is in writing.
• Illinois does not have a highly compensated exemption (usually applied to those who make over $100,000 under the federal law)

Repercussions

• On February 2019, the Senate passed Senate Bill 0001 (SB0001), that will not only increase the minimum age in Illinois from $8.25 to $9.25 in 2020, reaching $15 per hour in 2025, but also severally increase employer’s liability for wage and overtime violations.
• Under the previous Illinois Minimum Wage Law, employees were entitled to receive the amount of any underpayment, including overtime, plus a statutory penalty of 2% the amount of the underpayment per month that the amount goes underpaid, plus reasonable attorney’s fees and costs, approved by the Court. (S6 corroborated by S2)
• Under the SB0001, employers that don’t abide by the IMWL, may face up to three times the amount of the underpayment and 5% of the underpayments for each month following the date it should have been paid, besides attorney’s fees and costs. For instance, with the previous law, an employee who was due $100 per month over three years would recover $4,932 (3,600 in wages plus 1,322 in penalties), under the new law, the same employee could end up with $14,310 ($10,800 — 3x the amount owed — plus $3,300 in penalties).
• When added to the FLSA liquidated damages possibility, the costs for employers found guilty could be astronomical. Some are anticipating that the increased value will make plaintiffs and attorneys less inclined to amicably resolve the case, resulting in more and longer lawsuits in Illinois.
• The SB0001 also determines two extra penalties, payable to the Illinois Department of Labor’s Wage Theft Enforcement Fund: a $1,500 penalty for violation of the law and a $100 penalty for each employee impacted by failure to maintain accurate payroll records.
• The employer may also be liable to up to 20% of the total underpayment in damages if proven the misclassification was willful, repeated or with reckless disregard of the Illinois Law.
• If an employer fails to comply with or timely appeal an IDOL or court order, the employer will also be liable to pay a penalty to the IDOL totaling 20% of the amount owed, along with a penalty to the employee of 1% per calendar day of the amount owed for each day of delay.
• Another difference between the Illinois law and Federal Law is the statute of limitations. The Illinois overtime law provides that overtime pay that has not been paid can still be collected up to three years from the date the pay was earned, while the Federal Overtime law is two years and up to three years if the employer was consciously and intentionally violating the overtime law.

Cases

•  A Facebook former employee filed a lawsuit against the company in 2017, for misclassifying employees as managers to avoid paying overtime and illegally skirting Illinois wage laws. According to the plaintiff, Susie Bigger, she and others working as costumer solutions managers were instructed to cover duties pertaining other positions, such as sales, and worked more than 40 hours per week without overtime pay.
• In 2019, District Jude Harry Leinenweber, of the U.S. District Court for the Northern District of Illinois, granted a request by named plaintiff Susie Bigger to expand her legal action against Facebook into a class action potentially involving hundreds of others who worked for Facebook. The company countered by asking for appellate review, which was granted. The case is yet to be decided.
• Another company sued for misclassifying employees in Illinois is Bed, Bath & Beyond. The company was accused of classifying employees as assistant managers to avoid paying overtime. According to the plaintiffs, this is a company-wide practice, violating the FLSA and Illinois state laws. The parts settled, with Bed, Bath & Beyond paying close to $8.5 million.
• In 2013, the Chicago Tribune agreed to pay $660,000 to reporters for overtime claims. The TribLocal reporters, who mostly cover school board and municipal meetings, didn’t meet the requires to be considered a “creative professional”.

OVERVIEW: CREATIVE DUTIES (TEXAS)

• According to the Texas Workforce Commission website, the exempt duties followed by the state is what has already been set forth by the US Department of Labor (DOL), which as follows:
•  Exempt duties have set forth for "executive, administrative, and professional exemption categories" where the professional category is subdivided into learned professionals and creative professionals.
• Creative professionals are defined as employees who have a primary duty of performing work which requires "invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor."
• For creative professionals to qualify for an exemption, the work must be in a recognized field of artistic creative endeavors such as graphic arts, writing, acting, and music.
• The determination of exemption must be made on a case-by-case basis, but the majority of these workers are self-employed, not employees.
• Some common forms of Texas overtime pay law violation include employee misclassification where employers misclassify its employee by using a certain job title in order to avoid paying overtime, such as labeling a role as an independent contractor rather than administrator or manager (to avoid overtime pay).
• But as per DOL, creative professionals are mostly self-employed as their work is not subject to employer’s control and could be labeled independent contractor.
• Thus, according to a US law firm, there is a fine line in determining between exempt and non-exempt which usually causes employee misclassification and "gets employers into hot water and can cost them significantly in terms of fines, back overtime pay, and future Department of Labor (DOL) monitoring."

DETERMINATION

• If a work product is substantially controlled by the employer, it does not qualify for exemption such as employees of magazines, newspapers, TV and media who work as copyist, film/cartoon animators, press release writers/journalists, and any individuals who "only collect, organize and record information that is routine or already public."
• However, if the work product of a journalist/reporter/TV artist has a primary duty like conducting investigative interviews, analyzing or interpreting public events, writing editorials, opinion columns or other commentaries, or acting as a narrator or commentator, they are qualified as exempt creative professionals.
• Therefore, the general qualifications for exemptions are creative professionals whose primary duty is performed using originality, relying on their creative ability, uses own interpretation and analysis, and that work product is not subject to employer's control.

REPERCUSSIONS OF MISCLASSIFYING EMPLOYEES

• Texas does not have its overtime laws. The state's overtime provision follows what the DOL and Fair Labor Standards Act (FLSA) has set in place. The same is reported by a US law firm which it states that Texas follows the federal law for overtime regulations.
• Texas Young Lawyer Association (TYLA) published a recent Employer's Guide to Wages, Overtime and Exemptions which also stated that this is consistent under the Fair Labor Standards Act (FLSA). The contents of creative duties are also similar to what was found in the Texas Workforce Commission.
• The penalties imposed on employers violating FLSA does not differentiate as to the type of violations. Same penalties are imposed for wages, overtime and exemption violations.
• According to the TYLA employer’s guide, for any violations relevant to wages, overtime, and exemptions, penalties include employer paying damages for violating FLSA rulings including the unpaid wages and overtime pay. Additional liquidated damages equal to the amount in question may also be imposed to compensate the employee for the delay in receiving the amount due.
• The employer shall pay the attorney’s fee which is recoverable for a covered employee who will win in an action for violations of the FLSA. This amount sometimes is higher than the back wages and overtime pay owed in question.
• If an employer was mistaken in good faith upon reasonable grounds, an employer can avoid paying liquidated damages. But if the violation was proven to be deliberate or willful, an employer will pay civil penalties up to 1,000 per violation.
• A US law firm states that misclassification will cost employers cash as they are liable for back pay, retroactive benefits (such as healthcare, 401(k), memberships) and more. Furthermore, the issue can be turned into worst if a case gets into collective action.
• Statute of Limitation for overtime claims "is the same as under Federal Law in that claims can be made for the prior 2 years (3 years if the violation is willful)."

WAGE THEFT ACT

• Wage Theft is considered as the "unlawful practice of employers not paying their employees the full amount for the work they have performed" which also includes overtime pay. It is required for employers to comply with the rulings set by the federal Fair Labor Standards Act (FLSA).
• El Paso and Houston are the only cities in the state with a wage theft ordinance.
• According to the National Law Review, the Wage Theft Act is one of the most aggressive mechanisms to combat wage theft and the consequences of violating this act are more severe than the general FLSA penalties. This act makes non-payment of wages a third-degree felony allowing prosecution which also has a chance of jail time.
• In El Paso and Houston, all guilty employers are prohibited to receive lucrative city contracts and city permits.
• Additionally, in El Paso, a city government can deny permits and licenses to " to any offending company, not just city contractors". While in Houston, all offending employers will be included in a wage theft database.

FLORIDA AND FAIR LABOR STANDARDS ACT

•  Florida has no state laws covering overtime pay of workers qualified under the creative duties test.
• However, Florida employers and businesses are subject to the federal Fair Labor Standards Act (FLSA) rule governing overtime pay for creative professionals.
• According to Workplace Fairness.org, Florida currently has no state agency assigned to implement wage and hour laws.
• Instead, the state is subject to the Wages and Hours Division, which enforces the FLSA across the US.

REPERCUSSIONS

• Florida Overtime Lawyer (Richard Celler Legal P.A.) states that if an employer has claimed a wrongful exemption from overtime pay, the employee could be entitled to back pay and additional damages.
• However, the employee must file their claim within a specific time frame or their rights to the owed overtime wages will be waived permanently.
• The US Department of Labor Wages and Hour Division presented the following repercussions for employers in violation of the FLSA overtime exemption rule below.
• The Wage and Hour Division instructs employers to correct violations, secure agreements for future compliance, and supervise voluntary payment of back wages as applicable.
• The Wages and Hour Division may file a suit to restrain an employer from violating the FLSA regulation as well as withholding minimum wages and overtime pay.
• The Division may also file a lawsuit to recover an employee's back wages along with liquidated damages.
• The employee can file a separate lawsuit to claim attorney's fees and other litigation costs in addition to their back pay.
• Employers who willfully violate the FSLA may be fined up to $11,000 and undergo criminal prosecution.
• Employers who violate the FSLA overtime pay requirements will be required to pay penalties reaching up to $1,100 per violation.

DYBACH VS FLORIDA DEPARTMENT OF CORRECTION

• The Dybach versus State of Florida Department of Correction lawsuit concerns a Florida employee who was not receiving proper overtime pay from her employer.
• The complainant stated that she was not an exempt professional employee which included learned workers, artistic/creative workers, teachers, medical and law professionals.
• Her employer claimed that she was exempted from overtime pay as she had a degree in a specialized field (criminal justice), which the trial court upheld.
• However, the Court of Appeals for 11th Circuit reversed the decision based on the fact that the overtime exemption rule applied to the job requirement and not the educational attainment of the employee.
• Thus, the Florida case shows that employers and businesses are subject to the FLSA requirements in spite of a lack of established legislation within the state.

ADDITIONAL CASE STUDY

• In Aralar versus Scott-McRae Automotive Group, a Florida federal court ruled in favor of the employer and provided an avenue to recover their attorney's fees.
• This was based on the FLSA's provision that the employer can recover their lawsuit fees when the plaintiff/employee filed the case in "bad faith, vexatiously or wantonly".
• This specific court decision resulted from the plaintiff's failure to comply with an arbitration agreement with his employer and that he was in fact an exempted employee under the FLSA definition.

CREATIVE PROFESSIONALS IN MASSACHUSETTS

• The Commonwealth of Massachusetts defined professionals who are exempted from overtime pay based on the Fair Labor Standards Act (FSLA) 29 CFR Part 541.
• FSLA defined creative professionals as those who rely on creative ability in expressing concepts, such as actors, musicians, soloists, conductors, painters, novelists, essayists, and technical writers. FSLA also noted that the majority of these persons are self-employed or independent contractors.
• Seyfarth's employee guide to Massachusetts' Wage and Hour Law shows that creative professionals' primary work requires invention, imagination, or talent in a known field of artistic or creative endeavor. This is opposed to routine mental, manual, physical, or mechanical work.
• In order to qualify for Executive, Administrative and Professionals (EAP) exemption from undertime both from Massachusetts state law and FLSA, an employee must satisfy each of three conditions: 1) they must be salaried employees not hourly; 2) they must earn above the salary threshold which is $455 per week; 3) they must pass the "duties test".

PENALTIES AND REPERCUSSIONS FOR VIOLATING OVERTIME LAWS IN MASSACHUSETTS:

•  Misclassification of employees to be exempted from overtime is one of the forms of wage theft.
• According to Bloomberg, Massachusetts is one of the states that have penalties and remedies related to wage-hour violations such as wage theft.
• Overtime pay in Massachusetts is 1.5x for more than 40 hours per week.
• National Conference of State Legislators (NCSL) noted that Massachusetts has a penalty of 3x the unpaid wages for employers violating the state's overtime law.
• Steffans Legal, a firm which represents employees in overtime cases in Massachusetts, noted that aside from 3x the unpaid wages, employers should also pay for attorneys' fees, costs, and interest. It also notes that the misclassification of employees as exempt for overtime coverage is one of the most common mistakes employers make.
• The statute of limitations for overtime pay is three years.

COMPLICATIONS OF MASSACHUSETTS' OVERTIME LAW

• Massachusetts' law is obsolete in a sense that it still applies the federal salary threshold of $455 per week for EAP exemption from overtime. In comparison, the minimum wage in Massachusetts is $12/hour, which translates to $480 per week.
• Thus, executives, administrators, and professionals, including creatives who are in the lower-income bracket are exempted from overtime because the income threshold is too low and most of them work more than 40 hours for free.
• It is estimated that 435,000 salaried employees in Massachusetts would have the right to overtime should the threshold be higher.
• Since most of the creatives are self-employed or independent contractors, they are not entitled to employee compensation, such as overtime, and could not be a case for misclassification.
• Duties test protects non-EAP employees as Economic Policy Institute (EIP) reported cases to Massachusetts' Joint Committee on Labor and Workforce Development, where line workers or discount retailers are given token managerial responsibilities for them to be exempted from overtime pay.

OVERVIEW

• The current salary threshold in the United States for the overtime pay exemption is $455 per week or $23,660 per year.
• Aside from the salary threshold, the "creative duties test" is also needed for a worker to pass to be exempted.
• "Creative professionals" such as (musicians, writers, actors, etc.) fall under the "Professional" category of employees who can be exempted based on the duties test.
• An important consideration for the creative duties test is based on the employee's "duties" and not merely based on their "title or designation".
• It is also important to note that the United States' Department of Labor has proposed an increased salary threshold of $679 per week for exempted employees (currently $455 per week).
• This proposal is equivalent to a salary of $35,308 per year and will take effect on January 1, 2020.
• The increase in threshold could make about 4 million workers become eligible for overtime pay.
• Considering that a small percentage of workers are in creative positions who fall under the $679 per week threshold meets the creative duties test, the purpose of this proposed law is to "to screen out the obviously nonexempt employees".

THE NEW YORK LABOR LAW

• The New York Labor Law regulates the specifics of wage payments and not the Fair Labor Standards Act (FLSA). However, the more restrictive law governs.
• New York has a slightly different definition of "employers" as they define it as "any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service". New York excludes governmental agencies while the federal law includes it.
• New York has a different salary threshold for executive, administrative, and professional employees which ranges from $832 to $1,125 which took effect December 31, 2018, depending on the company size and the employer's location.
• The law has overtime exemptions for employees who are "in a bona fide executive, administrative, or professional capacity, ... or in the capacity of outside salesman."
• To pass the duties test, a "creative professional" must be performing a work that requires "invention, imagination, originality or talent in a recognized field of artistic or creative endeavor".
• Examples of creative professionals include film directors, graphic designers, photographers, writers, and illustrators.
• According to the New York Labor Law, other occupations who are exempted include farm workers, taxi drivers, members of religious orders, part-time babysitters, and camp counselors among others.
• Since the salary threshold in New York is greater than the threshold of the federal FLSA, employers in New York is required to comply to the state's threshold when it comes to the classification of a position to exempt.
• However, employers should pay overtime for non-exempt employees from these categories, as required by the FLSA and New York's Minimum Wage Order.
• The overtime pay should be equivalent to 1.5 times the regular rate for every hour overtime.
• The New York Labor Law notes that it differs on the basis of overtime obligation:
• If the employee is outside the employer's premises, the federal overtime compensation will be given to hours worked in excess of 40 hours per week.
• If the employee is within the employer's premises, the federal overtime compensation will be given to hours worked in excess of 44 hours per week.

• An employer has the right to exclude lectures and training programs as work time if it was done outside work hours, if the attendance is voluntary, and if it will not directly make the employee more proficient.

REPERCUSSIONS

• One way a New York employer can avoid paying overtime is by misclassification.
• Misclassification is a common violation where employees are designated in certain titles that are different from the real duties they were assigned to do.

• If a New York employer fails to pay wages according to the New York Labor Laws, they can be subject to criminal penalties.
• An employer can be held liable of misclassification or the overtime compensation whether the employer knows or does not know that they misclassified.
• For a company or employer in New York who failed to comply with the above-mentioned regulations, the limitations for action is 6 years to recover full wages. It is 3 years longer than what the federal law states.

• A New York employer is due $50 for the expenses for each Form W-2 that are not filed due to misclassification.
• For the employers' failure to withhold income taxes, a penalty of 1.5% of the wages is given plus 40% of the Social Security and Medicare taxes.
•  Interest for these penalties will also be accrued from the date it should be given.
• If the violation is assessed as willful and repeated, the Department of Labor can penalize the company/employer up to $1,000 per violation.
• The employer will also pay the attorney's fee and liquidated damages on behalf of the employee and recover backpay.
• If the violation is willful or if the employer knowingly violates the law, a New York employer will pay the employee 25% up to 100% of the total due damages.