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

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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

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 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.


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