Overtime violations are especially prevalent in low wage jobs.  Some of the industries with notably high instances of violations include the restaurant and hotel industries, retail, drug and grocery stores, private households and home health care.  Within these industries, occupations with the most overtime violations include childcare workers, home health care workers, waiters and bartenders, cooks and food preparers, retail salespeople, cashiers and stock clerks.  A quick glance at the national median hourly wages for these jobs shows that they all pay around just ten dollars an hour.  This averages out to just 100 percent of the poverty level for a single person, which would make the worker eligible for various kinds of public assistance in New York State.  Thus, the workers who are making the least amount of money are the ones who are most vulnerable to this exploitation

Diaz-Ordaz, Lisa

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4-26-2010 
Overtime Violations 
Lisa Diaz-Ordaz 
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Overtime Violations 
Abstract 
Overtime violations are especially prevalent in low wage jobs. Some of the industries with notably high 
instances of violations include the restaurant and hotel industries, retail, drug and grocery stores, private 
households and home health care. Within these industries, occupations with the most overtime violations 
include childcare workers, home health care workers, waiters and bartenders, cooks and food preparers, 
retail salespeople, cashiers and stock clerks. A quick glance at the national median hourly wages for 
these jobs shows that they all pay around just ten dollars an hour. This averages out to just 100 percent of 
the poverty level for a single person, which would make the worker eligible for various kinds of public 
assistance in New York State. Thus, the workers who are making the least amount of money are the ones 
who are most vulnerable to this exploitation. 
Keywords 
Buffalo, Poverty/Low Wage Work/Income Inequality, Low Wage Work, Wages and Benefits, Policy Brief, 
PPG, PDF 
This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/buffalocommons/49 
     
 
 
 
 
Policy Brief                                                                                    April 26, 2010 
Overtime Violations  
Lisa Diaz-Ordaz 
 
 
What Industries Tend to Violate Overtime Laws the Most? 
Overtime violations are especially prevalent in low wage jobs.   Some of 
the industries with notably high instances of violations include the 
restaurant and hotel industries, retail, drug and grocery stores, private 
households and home health care.
1
   
 
Within these industries, occupations with the 
most overtime violations include childcare 
workers, home health care workers, waiters and 
bartenders, cooks and food preparers, retail 
salespeople, cashiers and stock clerks. 
2
   A 
quick glance at the national median hourly 
wages for these jobs shows that they all pay 
around just ten dollars an hour.
3
  This averages 
out to just 100 percent of the poverty level for a 
single person,
4
 which would make the worker 
eligible for various kinds of public assistance in 
New York State.
5
  Thus, the workers who are 
making the least amount of money are the ones 
who are most vulnerable to this exploitation.   
 
Since overtime violations continue to proliferate, it is clear that the present 
protections and sanctions under the Fair Labor Standards Act are 
inadequate.  In order to curb these violations, there needs to be increased 
protection for workers and harsher sanctions for the employers who 
violate these laws.   
 
What is the Fair Labor Standards Act?  
The heart of the federal Fair Labor Standards Act (FLSA) is the wage and 
hour provisions.  These establish a minimum wage and require employers 
to pay their workers time and a half for overtime – any hours worked in 
excess of forty per week.
6
  The FLSA, however, does not protect all 
employees.
7
  
 
 
  
Who is Not Covered by the FLSA? 
The act exempts any family-owned businesses that do not employ persons 
outside the immediate family.
8
  It also exempts independent contractors, 
most agricultural workers, domestic workers who perform casual 
babysitting or care for the disabled or aged, and employees of seasonal 
amusement and recreational businesses.
9
  In addition, the FLSA has 
“white collar exemptions”.10  Many commentators have written about how 
these “white collar exemptions” make “white collar” workers reluctant to 
argue that they should be covered by the FLSA, because even if coverage 
increased their wages it would remove their “white collar” class status.11 
There are also income based exemptions; however in 2004, coverage was 
expanded to protect more workers.
12
  
 
How Does New York Labor Law Differ from the FLSA? 
With regard to coverage, New York Labor Law and the FLSA are nearly 
identical.  New York, does, however, provides for an eight hour day or a 
five day work week regardless of hours worked for specific state 
employees.
13
  Where the State overtime provisions provide greater 
benefits than the Federal overtime provisions, the State provisions must be 
applied.
14
 
 
How Can an Employee Bring a Claim under 
the FLSA? 
An aggrieved employee can bring a civil action 
against his or her employer, the Secretary of Labor can 
bring a civil claim on behalf of employees, or the 
Department of Justice can criminally prosecute 
employers.
15
 The FLSA also contains an anti-
retaliation provision which proscribes employers from 
retaliatory conduct such as discharging or 
discriminating against an employee for filing a 
complaint under the FLSA or testifying in an FLSA 
proceeding.
16
   
 
What Sanctions Are Imposed on the Employer, and What Can 
the Employee Recover? 
A willful violation is criminally punishable with up to a $10,000 fine; a 
fine and/or up to six months of imprisonment can be imposed for 
subsequent violations.
17
  The most common forms of recovery for workers 
in a civil suit are back pay, double back pay, double back pay with 
attorney fees and court costs, or injunctions against the injury causing 
behavior.
18
   It is a complete defense to liability if an employer can show 
that its FLSA violation was “in good faith in conformity with and in 
reliance on any written administrative regulation” of the Wage-Hour 
Administrator.
19
  However, the employer will still have to pay back 
wages.
20
   
  
 
Are The Sanctions Different If an Employee Files a Claim under 
New York State Labor Law? 
In New York, there is a six year statute of limitations for bringing an 
action to recover against an employer for an overtime violation; thus, an 
employee can recover for lost wages accrued during the six years prior to 
the commencing of the action. 
21
  Under the FLSA, there is a two year 
statute of limitation (or three years if the employee can prove that the 
violation was willful).
22
  On the other hand, whereas the FLSA allows 
double back pay, the New York Labor Law only allows for back pay plus 
25 percent of the total amount of wages found to be due.
23
   
 
With regard to criminal sanctions in New York State, the first willful 
violation is punishable with no less than a $500 fine and no more than a 
$20,000 fine (which is twice as high as the FLSA maximum) or up to one 
year imprisonment.
24
  The second violation is a felony and is punishable 
the same as the first, except the maximum prison term is one year and one 
day, and the violation can be punishable by both imprisonment and a 
fine.
25
  
 
Furthermore, unlike some states, New York does not recognize a tort for 
wrongful discharge;
26
 thus if, for instance, the employee suffered a 
retaliatory discharge for complaining about overtime violations, the 
employee would be limited to recovery under either the FLSA or the New 
York State Labor Law, both of which have caps on damages.  New York 
does, however, allow for a civil penalty against the employer for 
retaliation claims, which was just recently increased.
27
    
 
In What Ways Do Employers Evade Overtime Pay? 
Overtime violations include underpaying or not paying at 
all for “off the clock work” and failure to pay time and a 
half or at all for work in excess of 40 hours.   
 
For example, in one case, meat market employees were 
secretly staying late or coming in early and working off the 
clock, because they could not meet their employer’s 
unrealistic quotas.
28
  In these types of cases, if the employer 
does not have knowledge that the employee is working off 
the clock, then the employer is not liable.
29
 
 
Three examples from Wal-Mart stores include 
 a manager employees to work through breaks if a customer needs 
assistance,
30
  
 a manager locking workers in the store for an hour after closing in 
order to clear the store,
31
 and  
  
 a manager understaffing in order to cut labor costs, which had the 
result of forcing employees to work through their breaks and 
meals
32
 (this practice is also very common in the food industry).
33
   
 
There is also the problem of employees working over 40 hours a week, 
and either not getting paid at all or not getting time and a half. The latter is 
very common for domestic workers, including home health care workers 
and child care providers, who are not fully covered by the FLSA.
34
  These 
workers often receive a flat weekly or monthly pay regardless of how 
many hours they work.
35
 In fact, a 2008 study shows that 90 percent of 
childcare workers and 82 percent of home health care workers suffer from 
overtime violations.
36
   
 
What Can Be Done to Crack Down on Overtime Violations? 
At best, FLSA and New York State Labor Law coverage is incomplete, so 
first and foremost, the FLSA and NY Labor Law must be expanded to 
include coverage for more workers. The exemptions for domestic workers 
and agricultural workers are archaic and harmful to workers’ health, as 
both are very demanding jobs that require working long hours.  
Furthermore, it is apparent from the above mentioned examples that even 
those workers who are covered by the FLSA overtime provision are not 
being protected.  Thus, there should be increased sanctions on employers 
for violations of the wage and hour provisions in order to deter them from 
continuously violating these laws.   
 
 
 
Under New York Labor Law, the civil sanctions are not sufficient to deter 
employers from committing violations, especially since the liquidated 
damages are lower than those an employee can recover under the FLSA.  
Fortunately, the civil penalty against employers for retaliatory discharge 
was just increased.
37
  However, with the cap on damages, although the 
both the FLSA and New York State allow the prevailing employee to 
recover reasonable attorney fees, an employee has to consider if the time 
and stress of litigation is worth the hassle for the arguably small amount 
they will recover.   
 
In criminal claims, the employee is not a party to the lawsuit and is only a 
witness, so in a sense the employee loses control over the direction of the 
  
suit.  Also, the employee recovers nothing.  While the employer can be 
fined up to $20,000 in New York State and up to $10,000 under the FLSA 
and can go to prison for up to a year, the employee recovers neither back 
pay nor damages.   
 
What Else Can New York State and Local Governments Do? 
In March 2010, state legislatures introduced a bill entitled the Wage Theft 
Protection Act to New York State Senate and the New York State 
Assembly.
38
  This Act would increase damages recoverable against 
employers from 25 percent of the total underpayment to up to 200 
percent.
39
  Furthermore, sanctions in criminal suits would also be more 
severe.
40
 This bill would act as a stronger deterrent to employers than the 
current system of damages.   
 
 
 
The New York State Commissioner of the Department of Labor must also 
improve its investigation tactics.  The National Employment Law Project 
has suggested a national enforcement initiative that actively targets and 
investigates employers in high violation industries.
41
  The study states that 
unannounced investigations would help discover violations where 
employees are not reporting them or filing claims.
42
  
 
New York counties and cities might also look into what they can do at the 
local level.  At the beginning of 2010, Miami-Dade County in Florida took 
it upon itself to enact a wage theft ordinance that gives the county the 
power to intervene and seek remedies on behalf of employees when 
employers fail to pay employees the wages they are owed.
43
  The 
ordinance was passed with the help of the County’s Wage Theft 
Taskforce.  The City of San Francisco has a similar ordinance.
44
  If New 
York is unsuccessful at the state level, enacting an ordinance at the local 
level would be an excellent step in the right direction.   
 
 
 
 
 
  
 
                                               
1 ANNETTE BERNHARDT ET AL., BROKEN LAWS, UNPROTECTED WORKERS: 
VIOLATIONS OF EMPLOYMENT AND LABOR LAWS IN AMERICA’S CITIES 34 FIGURES 
4.4, 4.5 (2009), available at http://low-
wage.wikispaces.com/file/view/BrokeLawsReport2009[1].pdf 
2 Id.; Heather Somerville, Behind-the-Scenes Restaurant Workers Often Abused, 
Cheated, Study Says, MEDILL REPORTS, Chicago, Northwestern University, March 11, 
2010.   
3 Occupational Employment Statistics, The United States Department of Labor, Bureau 
of Labor Statistics, http://www.bls.gov/oes/current 
4 Prior HHS Poverty Guidelines and Federal Register References, United States 
Department of Health and Human Services,  http://aspe.hhs.gov/poverty/figures-fed-
reg.shtml 
5 Temporary Assistance Source Book, New York State Office of Temporary and 
Disability Assistance, http://www.otda.state.ny.us/main/ta/TASB.pdf 
6 MARION G. CRAIN ET AL, WORK LAW: CASES AND MATERIALS 710,711 (2005). 
7 The FLSA only protects employees who are engaged in commerce.  The “enterprise” 
must have a gross sales or business volume of at least $500,000 or it must be a public 
agency, hospital, or educational institution.  Second, there must be an employment 
relationship, that is, the worker must be an employee rather than an independent 
contractor, a student or a volunteer.  Lastly, the employee must not fall under any of the 
FLSA exemptions.7  Id. at 712.  
8 Id. at 713.   
9 Id. at 716.  
10“White collar” exemptions exclude those employed in executive, administrative or 
professional faculties.  Id.  
11 Id. at 792.  
12 In 2004, FLSA coverage was expanded to include those who make a maximum of $455 
per week, which is $23,660 annually.   Those earning below $23,660 are guaranteed 
overtime.  It was further expanded to include those earning between $23,660 and 
$100,000, but they must first pass the “standard duties test”, which ensures that the 
employees do not share any of the duties with those listed in the white collar exemptions. 
Id. at 779 
13Those employees include those which the state or a public benefit corporation or a 
municipal corporation or a commission appointed pursuant to law and any contract for 
public work which may involve the employment of laborers, workers or mechanics NY 
Labor  Law § 220 (2)  
14 Fitzgerald v Catherwood, 388 F2d 400, 403 (2d Cir. 1968).  
15 Id. at 744 
16
 Id.  
17 Id. at 745 
18 Handy Reference Guild to the Fair Labor Standards Act, The United States Department 
of Labor, http://www.dol.gov/whd/regs/compliance/hrg.htm#15 
19Crain, supra at 745.   
20 Id.  
21 NY Labor Law §198.  
22 Crain, supra at 746 
23 NY Labor Law §198 
24 Id. at §198-a 
25 Id.  
26 Murphy v American Home Prods. Corp., 58 NY2d 293, 297 
27 New York Labor Law § 215.  In November 2009, the civil penalty was increased to 
between $1,000 and $10,000 from $200 and $2,000. 
28 Davis v. Food Lion, 792 F.2d 1274 (4th Cir. 1986) 
  
                                                                                                                     
29 Id. 
30 In re Wal-Mart Employee Litigation, 271 F. Supp. 2d 1070 (E.D. Wisc. 2003) 
31 Barbara Ehrenreich, Two-Tiered Morality, N.Y. TIMES, June 30, 2002, sec. 4, at 15.  
32
 Id. 
33 Basco v. Wal-Mart Stores, Inc., 2004 U.S. Dist. LEXIS 4655, 5-6 (E.D. La. 2004); 
Bernhardt, supra at 23; Heather Somerville, Behind-the-Scenes Restaurant Workers 
Often Abused, Cheated, Study Says, MEDILL REPORTS CHICAGO, Northwestern 
University, March 11, 2010. 
34 Adam J. Hiller and Leah E. Saxtein, Falling through the Cracks: The Plight of 
Domestic Workers and Their Continued Search for Legislative Protection, 27 Hofstra 
Lab. & Emp. L.J. 233, 233-35, 257, (2009); BERNHARDT, supra at 33 
35 Id.  
36 BERNHARDT, supra at 34, Figure 4.5.  
37See note 27 supra, New York Labor Law § 215 
38 Wage Theft Prevention Act, Open Legislation, New York State Senate, 
http://open.nysenate.gov/legislation/api/1.0/html/bill/S7050, last accessed April 20, 2010. 
39 Id.  
40 With regard to sanctions in criminal suits, they would be based on the amount of wages 
an employer failed to pay out.  The worker would have to pay up to twice the amount of 
the underpayment in fines and the maximum term of imprisonment would increase to up 
to 15 years for a willful violation. Id.  
41 Just Pay: Improving Wage and Hour Enforcement at the United States Department of 
Labor, The National Employment Law Project 9 (2010).  
42 Id.  
43 James Parks, Miami-Dade County Commissioners Pass Historic Wage Theft 
Ordinance, AFL-CIO Now Blog News, February 19, 2010, 
http://blog.aflcio.org/2010/02/19/miami-dade-county-commissioners-pass-historic-wage-
theft-ordinance/  (last accessed April 20, 2010).  
44 Id.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Partnership for the Public Good 
237 Main St., Suite 1200, Buffalo NY 14203 
www.ppgbuffalo.org 
 
 


Overtime Violations

Overtime violations are especially prevalent in low wage jobs.  Some of the industries with notably high instances of violations include the restaurant and hotel industries, retail, drug and grocery stores, private households and home health care.  Within these industries, occupations with the most overtime violations include childcare workers, home health care workers, waiters and bartenders, cooks and food preparers, retail salespeople, cashiers and stock clerks.  A quick glance at the national median hourly wages for these jobs shows that they all pay around just ten dollars an hour.  This averages out to just 100 percent of the poverty level for a single person, which would make the worker eligible for various kinds of public assistance in New York State.  Thus, the workers who are making the least amount of money are the ones who are most vulnerable to this exploitation.PovertyLowWageWorkIncomeInequality__Overtime_Violations.pdf: 12 downloads, before Oct. 1, 2020

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