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If a contract specifies that work be rendered for services between 8 and 16 hours per week, and the month averages to 16 hours per week but certain weeks are in excess of 16 hours, is it legal to withhold payment for those hours? E.g.:

Week 1: 16 hours
Week 2: 24 hours
Week 3: 8 hours
Week 4: 16 hours

Is it legal to not pay for the the 8 hours in excess of 16 on week 2 if the contract specifies 8 to 16 hour work weeks? Given that the contractor monitors their own work and did not request a weekly overage agreement.

To me it seems legal, but unfair, since that the hours average to 16/week in the end.

Due to the difficulty in answering, I will provide the specific clause:

The Contractor shall work on an estimated 16 - 24 hours per week or as requested by the Company. All extended hours to be rendered by the Contractor shall be pre-approved by the company, in writing.

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  • Since this question seems to have two possible answers. Let me know if anything requires clarification or if any additional information needs to be added to the question to make it more answerable. Perhaps it cannot be answered without complete context.
    – ADJenks
    Jan 14, 2019 at 4:21
  • Your initial question was very clear. It is just that you cannot expect everybody's answers on stackexchange (& elsewhere) to be accurate.That is why an OP is strongly encouraged to assess the answers, read the external resources that some answers provide for the benefit of the OP, take note of who makes strong assertions and then has to withdraw them once these are dismantled, and so forth. I should point out, though, that the quote you added few hours ago creates some confusion, because now it states "an estimated 16-24 hours", which contradicts the hitherto stated range of 8-16 hours.
    – Iñaki Viggers
    Jan 14, 2019 at 10:06

2 Answers 2

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The contractor is entitled to be paid a minimum of 8 and a maximum of 16 hours in any week. That’s what the contract says so that’s what happens.

Fairness is not legally relevant - if you don’t think the contract is fair, don’t enter into it.

Now, if the contractor is actually an employee, such a contract would probably be unlawful.

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  • "Fairness is not legally relevant" is clearly wrong. See the covenant of good faith and fair dealing in contract law as well as other rulings which are premised on principles of equity.
    – Iñaki Viggers
    Jan 13, 2019 at 12:34
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    @IñakiViggers The jurisdiction is Canada - the covenant you refer to is limited to US jurisdictions - it doesn’t exist anywhere else in the world. In any event, it doesn’t do what you think it does anyway, it implies a term that the parties will behave within the contract fairly to allow each other to benefit from its terms - it doesn’t allow you to be paid for 24 hours if the contract only entitled you to 16.
    – Dale M ♦
    Jan 13, 2019 at 21:59
  • "the covenant you refer to is limited to US jurisdictions" Of course not. The first paragraphg here and here show just two of a multitude of jurisdictions entailing that covenant in their contract law. You are wrong also by interpreting the notion of "entitlement to something" as tantamount to"prohibition of the rest".
    – Iñaki Viggers
    Jan 13, 2019 at 22:17
  • @IñakiViggers my apologies US and Dutch law and its inheritors. However, from the second link it appears similar to the rule in common law jurisdictions on unconscionably so I maintain that it does not extend as far as you think it does.
    – Dale M ♦
    Jan 13, 2019 at 22:28
  • It is unclear what you mean by "not extend[ing] as far as you think it does". Agreeing that "the contractor will work 8 to 16 hours per week" is different than your apparent interpretation that "hours outside the range 8-16 per week are prohibited and will not be paid". Furthermore, the term "unconscionable" does not need to get to the level of "brutal" for a claim of breach of contract (or unjust enrichment) to arise.
    – Iñaki Viggers
    Jan 13, 2019 at 22:40
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Is it legal to not pay for the the 8 hours in excess of 16 on week 2 if the contract specifies 8 to 16 hour work weeks?

To me it seems legal, but unfair, since that the hours average to 16/week in the end.

Generally speaking, the contractor would have a viable claim of unjust enrichment and/or breach of contract. Claims of unjust enrichment are cognizable in Canadian jurisdictions. Basically only the contractor's actual non-performance of previous workload reasonably assigned to him would justify withholding payment of the excess hours.

Unless the contract explicitly prohibits overtime, the extra hours worked in Week 2 could constitute an implied contract on its own as legitimized by both parties' conduct. Moreover, the fact that the excess hours in one week roughly coincide with the reduction of hours in other week suggests is indicative of the company's unlawful intent to game the system. A claim of unjust enrichment would ensue regardless of the weekly average of work hours.

The belief that "Fairness is not legally relevant" is very mistaken, especially in contract law. Contract law is premised on the well-known covenant of good faith and fair dealing. Even in claims outside the doctrine of contract law, an injured party could prevail in equity unless statutory law or case law provide otherwise.

Edited on 1/14/2019 to address the OP's added quote of the contract clause

Due to the difficulty in answering, I will provide the specific clause:

The Contractor shall work on an estimated 16 - 24 hours per week or as requested by the Company. All extended hours to be rendered by the Contractor shall be pre-approved by the company, in writing.

This added clause creates confusion because hitherto the question only referred to the range of 8-16 hours per week. That being said, the doctrine of contra proferentem compels the company to pay for 24 hours of Week 2 --as sketched in your example-- unless the contractor is the draftsman of that contract (the way how this clause is worded suggests that the party who drafted the contract is the company).

Unless the contract defines the term "estimated" otherwise, the commonplace meaning of "estimated" permits the reasonable interpretation that only the work in excess of 24 hours can be considered "extended hours". If the contractor works 24 hours in a week, he clearly has not exceeded the benchmark of 24 hours and therefore did not need to "be pre-approved by the company*". Therefore, the company has the obligation to pay the full 24 hours of Week 2.

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