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What Can I Do If I’m Not Paid For All My Hours?

by | Apr 26, 2022 | Employment Law, Wage: Minimum Wage, Wage: Overtime, Wage: Tipped Employees |

Can I sue the company that I work for if I’m not paid for all of my hours?

Best Wage Theft Attorney Answer: Probably – a lot depends on the facts of each case. Employees may be able to assert claims under state contract and equity laws, as well as various state labor and employment laws. (Best Law Read: How Do You Recover Stolen Wages?). Let’s look at these claims a little closer.

A contract forms when parties exchange promises or other consideration. In doing so, each party is legally bound to perform their promises or provide other considerations. To that end, one party will have a claim for breach of contract when the other fails, without legal excuse, to perform any promise or provide the other consideration called for in the contract. Contracts can be either in writing or may be oral (except for certain limitations). While helpful, written contracts do not need to be signed, but can be shown through an offer and an acceptance. Applicable to this situation, if an employer offers an employee $10 for each hour worked performing a job, and the employee works 15 hours, the employer is contractually obligated to pay the employee $150.

The employee may also have an unjust enrichment claim. To win a claim for unjust enrichment, an employee must prove: (1) an enrichment by the employer, (2) an impoverishment by the employee, (3) a connection between the enrichment and the impoverishment, (4) the absence of justification for the enrichment and impoverishment, and (5) the absence of a remedy provided by law. An unjust enrichment claim may arise in an employment setting where the employee is scheduled to work only 15 hours per week at $20 per hour, but the employer knowingly (but without an express agreement) allows the employee to work 20 hours and then refuses to pay more than the 15 hours that were scheduled.

Another option is to assert a quantum meruit claim, which has four elements: (1) valuable services were rendered; (2) the services were rendered to the employer; (3) that the services were accepted, used, and enjoyed by the employer; and (4) that the employer was aware that the employee, in performing the services, expected to be paid by the employer. As you can see, unjust enrichment and quantum meruit claims are very similar.
It is important to note that if a claim can be asserted under the Fair Labor Standards Act (“FLSA”), these state law claims will be preempted – meaning that they cannot be asserted and the employee can only pursue FLSA claims.

Can I sue my employer for not paying me for all the time I worked under the FLSA?

Best Wage and Ohio Lawyer Answer: If the failure to pay all time owed would result in the employee making less than minimum wage or not receiving all overtime pay owed, then yes. However, if not, the employee may have a claim under the FLSA if the employer is located in United States Court of Appeals for the Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia) or the Tenth Circuit (Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah), but not likely elsewhere.

This type of claim is commonly referred to as a “gap time” claim. Basically, bap time is the hours between non-exempt employees’ regular work week hours and the 40 hours point when employees are entitled to overtime pay. “Gap time” occurs when an employee works hours that are “not covered by the overtime provisions because it does not exceed the overtime limit, and … not covered by the minimum wage provisions because, even though it is uncompensated, the employees are still being paid a minimum wage when their salaries are averaged across their actual time worked.” Rosario v. First Student Mgmt. LLC, No. 15-6478, 2016 WL 4367019, at *4 (E.D. Pa. Aug. 16, 2016). So, for example, if the employee works 39 hours but is paid for only 35 hours, the FLSA has no direct provisions to protect employees. The United States Courts of Appeals for the Fourth and Tenth Circuit have held that gap time claims may be available. The Tenth District allows “pure gap claims” under the FLSA. See Lamon v. City of Shawnee, Kan., 972 F.2d 1145, 1155 (10th Cir. 1992). The Fourth District allowing gap claims when the employee has also worked overtime i.e., where the employee worked 45 hours but was only paid for 37, the employee can recover the gap time (hours 37-40) and the overtime wages (hours 40-45). See Monahan v. Cty. Of Chesterfield, Va., 95 F.3d 1263, 1266 (4th Cir. 1996). The United States Court of Appeals for the Fourth Circuit in Monahan focused on two Department of Labor (“DOL”) regulations. First 29 C.F.R. § 778.315 provides that in determining the number of hours for which overtime compensation is due, all hours worked by an employee for an employer in a particular workweek must be counted.” Id. (Emphasis added) Second, the regulation found at § 778.317 provides that an “agreement not to compensate employees for certain non-overtime hours stands on no better footing since it would have the same effect of diminishing the employee’s total overtime compensation.”

A recent case decided by the United States Court of Appeals for the Fourth Circuit, Conner v. Cleveland County, N.C., 4th Cir., No. 19-2012 (Jan. 5, 2022), sheds further light on this issue. At issue in this case was the question of whether an underpayment of straight time is a violation of the overtime provisions of the FLSA, under the theory of “overtime gap time.” In Connor, the wage and hour complaint asserted that Cleveland County underpaid Sara Conner and other employees for straight or non-overtime hours worked during weeks in which the employees also worked overtime. Specifically, the employees worked as an EMS employee for Cleveland Emergency Services (CES) on schedule of on for 24-hours then off for 48 hours. Given that there would always be at least two and at most three 24 hour shifts in a designated work week, the CES employees would have either 8 or 32 hours of overtime per week.

As is common with employers, CES thought it could outsmart the FLSA requirements by starting with the salary they wanted to pay and calculated backwards so that both the straight time and overtime payments fit into the end amount. To do this, CES started with a stated salary of $36,900. Now this is where it gets complicated (which is why getting a qualified wage and hour attorney involved in any FLSA claim critical). The Court explained: “First, the employee’s regular hourly pay rate is determined by dividing the employee’s annual salary by 2,928 hours (the number of hours actually worked per year based on the 24 on/48 off schedule). Then, to determine the overtime rate, Cleveland Emergency Services multiplies the resultant hourly rate by 1.5. Conner does not take issue with this aspect of the Plan. In addition to the overtime rate, however, the Plan provides a “revised semi-monthly rate” for regular wages. The semimonthly pay is determined by multiplying the hourly rate that was used to calculate overtime by 2,080 (representing 40 non-overtime hours per week worked for 52 weeks), and then dividing this number by 24. The resulting number is paid to the employee each pay period. When an employee has worked overtime during a particular pay period, Cleveland Emergency Services will take the amount to be paid for overtime hours (calculated as described above) and add it to the revised semimonthly wages to be paid for that pay period.” (Citations to the record omitted). Conner alleged that the employer was using overtime pay to cover some of the straight pay. Applying this formula to real numbers, “Conner’s total 2017 salary as calculated under the Plan would be reduced to $42,235.20 ($26,208 for regular time plus $16,027.20 for the 848 hours of overtime we assume for purposes of this example). Because Conner alleges her actual total salary should be $52,927.20 (assuming 848 hours of overtime), she claims she is missing out on at least $10,692 of compensation in a given year.” I’m going to try to make this simpler, after all of these mathematical gymnastics, out the promised annual salary of $36,900 (which typically covers straight time), Connor only received $26,208. In Conner,

Nonetheless, no other Circuit has allowed such gap time claims under the FLSA. See Lundy v. Catholic Health Sys. Of Long Island, Inc., 711 F.3d 106, 116 (2nd Cir. 2013) (“FLSA does not provide for a gap time claim even when an employee has worked overtime.”)

What should I do if my employer steals my pay?

Best Ohio Wage Theft Attorney Answer: As you can see, these types of situations are complicated, complex, and tricky. There is no simple do it yourself way to handle the situation other than just asking nicely to be paid back by the thieving employer. As the vast majority of lawyers have never dealt with the FLSA and wage claims, you can understand how difficult it would be for a non-lawyer to address independently. If you believe that the company you work for had failed to pay you all of your wages, call the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation. (Read: What is the Spitz No Fee Guarantee?). The experienced wage and hour lawyers at Spitz will provide you with the top options for your overtime pay dispute situation. If you even think that you may be entitled to overtime pay that you are not being paid, call our Cleveland, Columbus, Cincinnati, Toledo, Boardman, and Detroit attorneys right now. Do not wait. The longer that you wait, the less that your claim may be worth.


The materials available at the top of this overtime, wage and hour web page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “Why is time missing from my paycheck?”, “What do I do if my boss won’t pay me for all of the time I worked”, “My paycheck is short” or “What do I do if I’ve been paid for less time than I worked?”, the your best option is to contact an Ohio overtime attorney to obtain advice with respect to FLSA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at the top of this page or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, Brian Spitz, or any individual attorney.

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