Avoid Overtime Pay Deals that May Result in Wage Complaints

At some point, you may want building staff to work overtime or to handle an extra job. But whether you’re asking a doorman to work extra hours to fill in for vacationing employees or offering a handyman a lump sum to paint an apartment on a Saturday, you need to make sure you pay that employee the right amount.

You’re supposed to pay both union and non-union employees time-and-a-half for every hour over 40 worked each week. While most owners try to control their payroll costs by limiting overtime work, many employees who want to beef up their incomes will offer to work extra hours at a straight-time rate of pay. However, deals like this can backfire. These types of wage deals could come back to haunt you later in the form of a wage complaint or lawsuit. Complaints like these are usually filed after there’s been a falling-out between the owner and employee, or after the employee gets fired.

If the employee later files a wage complaint or sues, the owner will wind up paying the employee every extra dollar the employee should have been paid—and more. We’ll go over the applicable rules of overtime pay and any exceptions made for building superintendents. An understanding of the various rules can help you avoid wage-related lawsuits and complaints.

Rules on Overtime Pay

Union employees. The 32B-32J Apartment Building Agreement requires union employees other than working superintendents get paid time-and-a-half for every hour over eight worked each day, and for every hour over 40 put in each week [Article XV: Wage and Hours, Sec. A, par. (2)(a)]. A paid holiday is considered as a day worked for the purpose of computing overtime pay.

It’s important to note that a union employee can’t waive what the 32B-32J agreement guarantees them. That means the employee can’t agree to be paid less than the amount the union has bargained for under the agreement. Union employees who think they’ve been underpaid can file a wage complaint with the union. According to the agreement, “Where a failure to compensate overtime work can be unequivocally demonstrated through employer payroll records, the Union may grieve the failure to compensate such overtime work for the three years prior to the filing of the grievance” [Article V: Grievance Procedure, par. 8].

Here are some additional rules pertaining to overtime for building service employees other than working superintendents:

• Every employee shall be entitled to two days off in each workweek and any work performed on such days shall be considered overtime and paid for at the rate of time and one-half [Article XV: Wage and Hours, Sec. A, par. (2)(a)].
• Any employee who has worked eight hours in a day and is required to work at least four hours of overtime in that day, shall be given a $15 meal allowance [Article XV: Wage and Hours, Sec. A, par. (2)(h)].
• No overtime shall be given for disciplinary purposes. An employer shall not require an employee to work an excessive amount of overtime [Article XV: Wage and Hours, Sec. A, par. (2)(i)].

For working superintendents under the union agreement, the standard workweek consists of five days, but the two days off in such workweek don’t have to be consecutive. The owner may reschedule the superintendent’s days off either consecutively or non-consecutively as long as the owner gives the superintendent at least one week’s notice of any change in scheduled days off [Article XV: Wage and Hours, Sec. B, par. (2)(a)].

If the superintendent is required by the owner to perform tasks other than emergency work on his days off, he or she must receive equivalent time off during the same workweek or a day’s pay at the time and one-half rate by agreement between the owner and superintendent [Article XV: Wage and Hours, Sec. B, par. (2)(b)].

Non-union employees. Owners of non-union buildings are also prohibited from making wage deals. Failing to pay overtime violates the federal Fair Labor Standards Act (FLSA). The FLSA entitles building service workers to overtime pay at one-and-a-half times their regular pay for every hour over 40 worked each week. The overtime rule applies even if the employee works two different jobs for the same employer. So, if you hire the handyman to paint an apartment on his day off, you must pay him overtime for the extra work.

Non-union employees who think they’ve been underpaid can either file a complaint with the Department of Labor or sue in court up to three years after the underpayment. The Department of Labor or court can order the owner to reimburse the employee for unpaid overtime, plus legal fees. The employee can also get extra damages equal to the unpaid overtime if the court finds that the owner “willfully” violated the FLSA. So, if an owner deliberately doesn’t pay an employee $3,000 in overtime wages, the owner could be ordered to pay $6,000 to the employee—$3,000 in unpaid compensation and $3,000 in extra damages, plus the employee’s legal fees.

At the state level, New York’s wage and hour law also covers building employees but carves out an exception for building superintendents. New York Labor Law’s supporting regulations provide the applicable minimum wage rates in effect in the state, and residential building superintendents or, as the regulations refer to them, “janitors,” are excluded from the protection of New York’s federal-law-trumping hourly minimum wage rates. New York State defines a “janitor” as a person employed to render any physical service in connection with the maintenance, care, or operation of a residential building. Where there’s only one employee, that employee is deemed the janitor. Where there’s more than one employee in the building, the employer must designate an employee who lives in the building as the janitor. And no building may have more than one janitor [12 N.Y.C.R.R. §141-3.4].

The Department of Labor’s Minimum Wage Order for the Building Service Industry, 12 N.Y.C.R.R. Part 141, requires, for residential buildings with any number of units, that janitors or superintendents be paid a minimum wage of at least $7 per unit per week [12 N.Y.C.R.R. §§ 141-1.1, 141-1.2]. The $7 minimum became applicable after Dec. 31, 2016, for small employers of 10 or fewer employees. For large employers of 11 or more employees, the minimum wage is $7.35. These minimum wages are applicable until Dec. 30, 2016. Starting Dec. 31, 2017, the minimum wage increases to $8 for small employers and $8.65 for large employers [12 N.Y.C.R.R. §141-1.2]. This year, the unit rate doesn’t apply to janitors who are paid at least $446.60 per week for small employers and $467.85 for large employers [12 N.Y.C.R.R. §§ 141-1.1, 141-2.8].

According to the rules, an employer must pay an employee, except a janitor in a residential building, for overtime at a wage rate of one and a half times the employee’s regular rate for hours worked in excess of 40 hours in a workweek [12 N.Y.C.R.R. §141-1.4]. As such, your building service employees such as doormen and additional maintenance staff have access to state law-imposed wage minimums, while designated superintendents have to rely on federal wage and hour law for any hour-based claims.