What can I do if I work under the table and my boss won’t pay me?
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UPDATED: Jul 16, 2021
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You can sue your employer for not honoring the agreement (even if only an unwritten or oral one) under which you worked in exchange for pay. You did your job. Now legally, the boss has to pay up.
Your recourse—that is, the way you get paid, when someone owes you money for work you did but won’t voluntarily pay you—is to sue them for the money. All employment is essentially a contractual relationship: there is an agreement between you and the employer pursuant, or according, to which you work. Under that agreement, for doing a certain amount of work (e.g., for working an hour), you are to be paid a certain amount of money (for example, $10.00). Even if there is no written contract, there is still an oral (often incorrectly called “verbal”) or unwritten agreement, and that agreement is enforceable in court. If one party to a contract performs its obligations, the other side becomes legally obligated to do what it is supposed to do, too. In this case, if you did your work, the employer is obligated to pay you; if he does not, you can sue him for “breach of contract”—for violating that contractual obligation—for the money he owes you.
In the lawsuit, you will need to prove two things by what is called a “preponderance of the evidence”—or that, it is more likely than not that what you say is true. The first is the terms of the employment relationship: essentially, how much he was going to pay you per hour, or per day, or per project completed—whatever the agreement was. Second, that you did the work. You can use witness testimony, including your own; any text messages, emails, or other correspondence; and any other evidence, such as any time sheets you may have filled out.
If there is no documentary or physical evidence of the terms of the employment agreement or the work you did and no witnesses in your favor other than yourself, it will essentially come down to your word against his, and you will be at a slight disadvantage. As the person suing, the “burden of proof” is on you. You have to be at least slightly more credible or believable than your employer, since if everything is equal (that is, the court cannot decide between the two of you), you will fail to prove your case and the employer will win and not have to pay you.
If the employer was an LLC or a corporation, you sue the business itself: the LLC or corporation. If the employer was not an LLC or corporation, you sue the business owner personally. You will need a physical address to sue—the courts only have ‘jurisdiction” or power over someone if they can physically “serve” the court papers on him. But since you worked for him, you should know where he is.
Note that there is no such thing as legal “under the table” work: all earnings must be reported (i.e., you have to file a tax return); you have to pay certain taxes (e.g., Social Security and Medicare) no matter what; and depending on how much total income you make for the year, you may owe income taxes, too.