The minimum wage is based on the total pay you receive in a given workweek. In other words, as long as your average pay rate for the hours you worked equals or exceeds the applicable New York State minimum wage, your employer is in compliance with the law. If your average pay falls below the minimum wage or your employer does not pay you overtime when you worked more than 40 hours in a given week, you may have a viable wage and hour claim.
Judge Rejects Delivery Drivers' Lawsuit for Lack of Specifics
One thing to keep in mind, however, is that you need to be specific when bringing a wage and hour claim. Judges will not accept vague, non-specific allegations that your employer broke the law. You also must understand how the law classifies different types of payments that you may receive from your employer.
Consider this recent minimum wage and overtime case from upstate New York. The plaintiffs were delivery drivers for the defendant, a company that offered late-night cookie deliveries in Rochester and other locations around the country. According to their complaint, the plaintiffs said the defendant paid them a base wage of $5 per hour in addition to mandatory delivery (or service) charges paid by the customers and other unspecified “additional wages.” In addition, the plaintiffs alleged that they worked more than 40 hours per week “on numerous occasions” yet did not receive the legally required overtime wage.
The judge said the complaint lacked the necessary specificity for the plaintiffs to proceed with their case. It was simply not clear from the complaint exactly how much the plaintiffs earned during the workweek. As mentioned above, an employer satisfies the minimum wage requirements if the average wage–total wages paid divided by total hours worked–meets the threshold. Here, the judge said it was “impossible to conclude” whether or not the defendant complied.
The judge also found that the defendant was not legally obligated to notify the plaintiffs that it was taking a “tip credit” against the minimum wage for the service charges. Indeed, as the plaintiffs themselves acknowledged in court filings, service charges are not legally classified as tips. Under federal regulations, a “compulsory charge for service, such as 15 percent of the amount of the bill,” is not a tip when imposed by the employer–as opposed to given at the customer's discretion. That said, an the employer is allowed to distribute part or all of the service charge to the employee as compensation, which counts towards the employer's minimum wage obligations.
A New York City Wage and Hour Attorney can Help You
You should always keep careful track of all wages and other payments you receive from your employer. If you have reason to suspect minimum wage or overtime violations, such information will be critical in helping to prove your case. An experienced New York employment law attorney can further advise you of your rights and help you build a case against your employer if necessary. Contact the Law Offices of Mahir S. Nisar, Attorney at Law, at 646.760.6493 to speak with someone today.