What can I do if my employer hasn’t paid me for 5 months despite promises that he will?

UPDATED: Sep 29, 2022

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What can I do if my employer hasn’t paid me for 5 months despite promises that he will?

I have been continuing to work full-time. I’d like to approach one of our clients for a job (which would be a breach of my employment contract) but I am now desperate due to my employer breaching our contract. Am I allowed to breach our contract if he has done so consistently?

Asked on November 4, 2015 under Employment Labor Law


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

1) Your employer's material (or important) breach of your contract, such as by not paying you, most likely would justify you as treating the contract as terminated or not binding due to the breach. It is not certain this would be the case--a judge could rule that the noncompetition clauses still apply and your recourse was to sue your employer (see below) for the money, so you could not treat this as 100% safe, but you would have a strong argument for not being bound under these circumstances.
2) You can sue your employer for the money, under grounds of breach of contract (both of any written agreement[s] and also of the oral agreement that you work in exchange for being paid), unjust enrichment (it is inequitable and improper for your employer to be enriched by your labor without paying for it), and possibly for breach of the labor laws (e.g if you are hourly, the Fair Labor Standards Act requires you to be paid for all hours worked). Suing is how you get money from somene who owes you and will not/does not pay.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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