Fair Work, Fair Wages | Why Job Opportunity Specialists  Are Pushing For Unpaid Overtime Under the Fair Labor Standards Act

In the demanding work environment of New York City (“NYC”), countless employees put in additional hours to meet stringent deadlines or walk the extra mile, sacrificing personal and family time. Despite their hard work and commitment, many employees are not compensated legally for the extra hours spent at work. When employers take advantage of employees’ hard work and dedication, short-changing employees’ overtime pay by ignoring work performed before the shift, after the shift, and during meal breaks, we ensure that they receive the compensation they are owed. 

At McGillivary Steele Elkin LLP, our employment attorneys understand that no employee wants to selflessly volunteer their time and efforts for free. In fact, this is illegal. Having worked in the legal industry for many years, we believe that unpaid overtime violations should never be tolerated, not just for the sake of upholding the ideals of justice and fairness, but also for the mental, physical, and financial health of overworked and underpaid employees. With this in mind, our firm recently filed a collective action lawsuit on behalf of 1400 Job Opportunity Specialists employed by NYC to claim compensation for certain labor law violations.    

Who are Job Opportunity Specialists?

Job Opportunity Specialists  work day in, day out to help NYC residents receive the rightful wages that allow them to keep a roof over their heads and food on their tables.  Job Opportunity Specialists  (i.e. the plaintiffs in this case) are employed by NYC to perform time intensive and time sensitive work to help City residents in need. Their work generally involves meeting clients, gathering information for different types of benefits, and processing the paperwork that allows residents to receive aid from the City. 

Job Opportunity Specialists play a vital role in facilitating benefits for New York City residents who might be struggling with socio-economic barriers and are therefore in want of specialized services. 

What is the Complaint Made By the Job Opportunity Specialists  Against the City?

Job Opportunity Specialists filed a complaint against NYC claiming that they are not being paid time-and-a-half overtime for their overtime hours because they work during their unpaid meal break, and before and after their shifts without overtime pay. Further, even when they do receive overtime wages for preapproved work, they often do not get those wages until more than a month later, and they are paid at the wrong rate. Accordingly, the city’s action in withholding payment from employees who have worked beyond the standard 40 hours violates the Fair Labor Standards Act (“FLSA”). 

What is the Fair Labor Standards Act?

The Fair Labor Standards Act or the FLSA is a federal law that sets the minimum wage, overtime pay, recordkeeping, and youth employment standards for employees, both in the federal/state/local government as well as the private sector. Covered employees (who are otherwise not exempted under any other statutory provision) must receive overtime pay if they work for longer than 40 hours in a week. This overtime rate must be at least one-and-a-half times their regular rate of pay. For example, if an employee earns $20/hour during their 40-hour workweeks, they are entitled to receive at least $30 in overtime pay for hours they work over 40 in a workweek. 

What is Unpaid Overtime?

Unpaid overtime refers to the extra hours spent by employees over 40 in a workweek beyond their regular hours for which they do not receive any additional pay. Unpaid overtime can put financial strain on the worker, and lead to issues like burnout and stress.

Who is Entitled to Overtime Pay?

Any employee who’s covered under the FLSA is entitled to overtime pay for working beyond 40 hours per week. In terms of practice, however, many employers do not compensate their employees for additional hours of work by using creative ways to deny fair pay like improperly calculating regular rates, failing to consider pre-shift and post-shift activities as additional hours, ignoring work performed during the unpaid meal, or wrongly claiming that covered employees are exempt from overtime pay. 

How Did the City Violate the Fair Labor Standards Act?

Job Opportunity Specialists  often work  40 hours a week. While the city’s employees are supposed to get a one-hour unpaid lunch break each day, the job responsibilities, high volume of work, and strict deadlines force them to perform their tasks partly or fully through such a break. Eating at your desk while performing work is not a meal break, and should be paid. This is exactly what happens to the Job Opportunity Specialist. 

In addition, the employers’ timekeeping system is supposed to keep track of all the time spent at work, including hours recorded past the scheduled shift of workers. However, the plaintiffs allege that while the timekeeping system records the work time of workers on a minute-by-minute basis, it does not pay them that way. In other words, overtime work beyond the preapproved hours goes uncompensated because the additional hours are categorized as “non-compensable.” This way, for instance, if the additional work performed by the employees before their shifts  is classified as non-compensable by the system, the employees would never receive additional overtime pay for that work. 

Meal Allowances

City employees who work in the evenings beyond regular shift hours are supposed to receive a meal allowance for a minimum of two hours of continuous overtime. These are taxed as income. However, the complaint alleges that NYC does not include meal allowances in their regular rate when paying  overtime. This violates the law.   

Shift Differentials

City employees are entitled to a night shift differential amounting to 10% of their hourly rate, on top of their hourly rate. However, similar to the issue with meal allowances, the complaint alleges that the city does not include shift differentials in their overtime premiums either. This also violates the law.

What is the Relief Sought By the Job Opportunity Specialists?

In their complaint, the Job Opportunity Specialists  seek back pay to recover unpaid wages for the last three years, along with an equal amount as liquidated damages, and also attorneys’ fees and costs. 

What Should I Do If My Employer Does Not Pay Me Overtime Wages?

If you are concerned that your employer is not paying you overtime wages as required by law, you should take immediate action to remedy the situation. Here are some of the steps you can take:

• Set up a consultation with an employment and labor law attorney to discuss your options
• Work with McGillivary Steele Elkin to file a complaint against your employer to claim unpaid overtime wages as well as liquidated damages. 
• It does not matter if there is no record of these hours you worked without pay, because the employer, and not the employee, should be keeping track of this time.
• It also does not matter if you have not asked your employer to be paid for this time. If the employer should have known the unpaid overtime work was performed, they must pay you for it.

Have More Questions? Contact Our Attorneys at McGillivary Steele Elkin LLP Today

A healthy work-life balance is important for every individual, including those in client-facing jobs like the plaintiffs in the current lawsuit. While overtime work is supposed to come with financial incentives, it’s essential to ensure that the employees’ extra hours are meaningfully compensated in accordance with labor laws. If you believe that your employer is forcing you to work overtime without proper compensation, contact McGillivary Steele Elkin LLP today for help.