There is a common misconception that if a employee is paid on a salary or shift pay, overtime pay is not required.
Only a limited amount of employees in restaurants are “exempt” from the requirement of overtime pay under the federal Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). In order to qualify as an “exempt” job under these laws, a restaurant worker has to fit within the administrative, executive, or professional exemption. So, if a restaurant is paying a cook, maître’d, bookkeeper, host or other non-management employee a salary for a workweek in excess of 40 hours, it is unlawfully failing to pay the employee overtime — regardless of how much the employee is paid. Likewise, regardless of how much an employee is paid for shift pay, if that employee works more than 40 hours per week, the restaurant has broken the law by not paying the employee time and one-half for all hours worked over 40.