Can an Employer Require Pre-Authorization for Overtime or Not Paying it?

Employers Cannot Require Pre-Authorization for Overtime in Most Instances: New York City Wage and Hour Attorney Explains

Overtime can become very expensive for an employer very quickly.  This is because overtime is time and a half (1.5) times the regular rate of pay to an employee for each hour worked above 40 hours in a workweek.  Because of this, many employers try to create exceptions to the rule to lower the amount of wages owed.  In fact, some employers will require pre-approval for overtime.  Generally, this will violate New York labor laws and regulations.

Anyone who has had an employer tell them that they will not be paid for overtime because it was not pre-approved or authorized before the hours were worked may be violating your rights.  Call SAMUEL & STEIN to learn if you may be entitled to overtime that you are not being paid.

General Rule: Employers Cannot Require Pre-Authorization or Pre-Approval for Overtime

Under New York law, the general rule is that an employer cannot require pre-authorization or pre-approval for overtime.  This smacks in the face of the purpose of the overtime law, which is to protect employees from overbearing, dominating, and abusive employers who take advantage of employees.  It is about protecting employees rights.

Therefore, if an employer was able to so easily cancel out overtime because it was not pre-approved, the labor law and regulations would be completely useless.  That is why the general rule is that employees who are entitled to overtime must be paid overtime, notwithstanding a requirement by an employer to get pre-approval before the employee works overtime.

Exception to the Rule: Employees Who are Not Entitled to Overtime or Who Have Contracts

However, there is of course an exception to the general rule.  This occurs when an employee is is exempt from overtime under New York Labor Law s 651, and therefore an employer is not required to pay overtime.  Therefore, when an employer still willingly pays an employee overtime even though the employee is exempt and not entitled to it, an employer can freely require an employee to get pre-approval for overtime.  This is not violating the law because the law does not actually afford overtime to the employee in the first place.

The second time this occurs is when the employer and employee have an employment contract.  Again, this may come up in the situation where an employee is exempt from overtime, but the employment contract has been negotiated to include overtime.  This frequently occurs with unions and law enforcement officers who enter into collective bargaining agreements with state, federal, or local municipalities for overtime.  In these agreements, there usually is a procedure for overtime which requires pre-approval.

Therefore, an employee who is under contract which requires pre-approval for overtime—individually or through a union—must get such pre-approval or he or she will not be entitled to overtime.  This does not violate New York labor law or regulations because the employee is not entitled to overtime in the first place.

Unsure is You Are Owed Overtime After Being Told you Need Pre-Approval?  Call Our Overtime Attorneys to Learn Your Rights!

The experienced New York City Wage and Hour attorneys at SAMUEL & STEIN are dedicated to asserting and defending the rights of employers and working people throughout New York and New Jersey.  We have the resources, experience, and knowledge necessary to ensure your legal rights are protected and you are not taken advantage of.  Call us today by dialing (646) 681-4193 or use the convenient “Evaluate Now” box on our webpage.  Together we can help answer your questions and protect your rights.

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