Missing Non-Overtime Wages

Is your employer paying you less than your hourly rate, but more than minimum wage? Is your employer paying you for 32 hours in a workweek, even though you worked 35 hours? While the Fair Labor Standards Act typically does not apply in these situations, there are other laws that can help employees when an employer fails to pay non-overtime wages.


These claims are for a period of time called “gap time” and typically consist of claims for unjust enrichment, quantum meruit, and breach of contract.

  • In an “unjust enrichment” claim, an employee typically argues that the employer has been enriched at the expense of the employee because the employee worked hours for which he/she was not properly compensated;
  • In a “quantum meruit” claim, an employee typically argues that he/she provided services to the employer in the form of work, the services had a reasonable value, he/she reasonably expected compensation for the services, the employer accepted the services, and the employer failed to compensate the employee for the reasonable value of the services.
  • In a “breach of contract” claim, an employee typically argues that an agreement existed between the employee and the employer under which the employee would perform services and the employer would compensate the employee at an agreed hourly rate, the employee performed the services under the agreement, and the employer failed and refused to perform its obligations in accordance with the agreement by failing to compensate the employee.

If your employer paid you for 39 or less hours in a workweek, but you actually worked additional hours for which you were not compensated (but less than 40 hours), you likely do not have claims under the Fair Labor Standards Act, but you may have gap time claims.

If you believe your rights may have been violated, please contact a wage lawyer at Weiner & Sand LLC to discuss your rights.