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What Can I Do About Nonpayment for My Services as Employee or Contractor?

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Question: What Can I Do About Nonpayment for My Services as Employee or Contractor?
Answer:

Getting Paid for Your Services as an Employee or Contract Worker
In these difficult economic times, many employers are finding it difficult to make ends meet, and sometimes they cut pay of employees or fail to pay contractors. Employees and contract workers have the right to expect to get paid and it's difficult to know what to do when payment isn't made. In this article, we'll look at the possible remedies for employees and contractors to pursue when they are not paid for their work.

Employee? Or Contractor?
Employees and contract workers (independent contractors) are two different situations and each is discussed separately. Employees are paid on an hourly or salaried basis and are under the control of the employer; contract workers work independently, often have contracts, and are paid by the job or project. Read more about the difference between an employee or contract worker.

Why Companies Don't Pay Employees or Contractors
It may be obvious, but it's worth noting that there are two reasons businesses don't pay:

  • In the case of non-payment of overtime, sick pay, or minimum wage, some employers may not be aware of the law or may choose to ignore the law to save money.
  • In most cases where businesses don't pay, it's because they don't have the money. This may be a temporary cash flow shortage or a more permanent situation such as a bankruptcy. In these cases, employees and contractors are not paid because there are other more pressing (to the business) uses for the money.
Unfortunately, when businesses don't have money, employees are often the first to be unpaid, rather than the last. See a discussion of bankruptcy below.

Non-payment to Employees
One of the primary obligations of employers is to pay employees. Employers must pay a fair wage (minimum wage, in most cases), must pay for overtime, and must pay immediately. Wage payments are part of the federal Fair Labor Standards Act (FLSA) and every state also has wage and hour laws.

If an employee feels he or she is not being paid correctly, the first step is to put the issue in writing to the employer. Spell out exactly what payments have not been made (overtime? paychecks late?). If the request doesn't work, you have two choices:

  • You can contact an employment attorney to help you get your money. This means you will have to pay the attorney, unless you can get the attorney to take a contingency (getting paid only when you win) or putting attorney fees as part of the settlement by the employer.
  • You can contact your state employment agency or wage and hour department and file a claim.
BUT, in either case, you will have to go through a process and wait to receive any money you might be owed. This process can take months, unfortunately, and you have no guarantee that you will get paid.

Most employees don't have specific contracts, but this doesn't mean they don't have a legitimate claim against their employers. If you are considering a lawsuit or complain, gather up documentation, including previous pay stubs, any letters or emails from the company promising payment, employee handbook, or anything that can help you substantiate your claim against your employer.

Non-payment to Contract Workers
If you are working for a business and you are not an employee, you are a contract worker. Some, but not all, contract workers have contracts. If you don't get paid for your services, begin by (a) writing to the business explaining the work you did and the payment you expect. If you have previously been paid, that helps establish the "contract," and (b) documenting all previous payments and any tax documents, like 1099-MISC forms showing previous payments.

If your attempts to get paid aren't successful, you can contact an attorney and attempt to sue for payment. Your documents will help with your case.

Small Claims Court and Non-payment for Services
You may be able to take your case to small claims court. either as an employee or contractor. The amount of the claim (the amount you are owed) must be within the limits of claims for your state. But even if your case prevails and you get a judgment against the company, you may have a difficult time getting payment. Read more about the small claims court process.

Business Bankruptcy and Payments to Employees and Contract Workers
If a business files bankruptcy, all claims for payment, including those claims by employees and contract workers, become part of the bankruptcy process and are paid in a specific order. If you find out that the business is bankrupt, you should contact an attorney and get in the process, but there is no guarantee that you will get paid. Read more about bankruptcy claim priorities.

In short, if you are not paid by a company, either as an employee or contractor, there is little you can do to get paid quickly, or at all. Filing a claim as described above can help, but it still doesn't speed up the process.

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