For any hours an employee worked over 40 per week, the employee must receive overtime.
Employees must receive overtime pay for hours worked over 40 in a workweek at a rate of at least one and a half times their regular rate of pay. There is no limit in the law on the number of hours employees aged 16 and older may work in any workweek. There is no legal requirement for overtime pay for work on Saturdays, Sundays, holidays, or regular days of rest, unless overtime (i.e. hours after 40 per week) is worked on such days. The overtime pay requirement may not be waived by agreement between the restaurant and the employee. Salaried administrative, executive and professional employees may be “exempt” from this overtime requirement, but being paid a salary does not automatically exempt a worker from the overtime requirements.
Effective December 31, 2016, the minimum overtime pay rate for New York restaurant workers who are paid the minimum wage varies depending on the location of the restaurant and, in New York City, the size of the restaurant. The applicable overtime minimum wage rates for regular (i.e., “back of the house”) and tipped employees are as follows:
|Location||Overtime Min. Wage Rate as of 12/31/16||Overtime Min. Wage Rate for Tipped Employees as of 12/31/16|
|NY City – Large restaurant (11 or more employees)||$16.50 per hour||$13.00 per hour (tip credit of 3.50 per hour)|
|NY City – Small restaurant (10 or less employees)||$15.75 per hour||$12.75 per hour (tip credit of $3.00 per hour)|
|Long Island and Westchester County||$15.00 per hour||$12.50 per hour (tip credit of $2.50 per hour)|
|Rest of New York State||$14.55 per hour||$12.35 per hour (tip credit of $2.20 per hour)|
The overtime wage rate for fast food employees is $18.00 per hour in New York City and $16.13 per hour in the rest of New York State.