Gap Time And The FLSA

Written on 04/16/2022
Will Aitchison

“Gap time” is a recurring issue un­der the FLSA, one that has produced contradictory opinions from different federal courts. A recent opinion from the Fourth Circuit Court of Appeals does a good job of explaining what gap time means and how courts have produced such diametrically opposed opinions on what compensation, if any, is due for gap time.

A classic example of gap time occurs where the employer has estab­lished the Section 7(k) exemption un­der the FLSA, which allows employers to treat public safety employees on a “work period” rather than a “work week” basis. Work periods can range from 7-28 days in length. The law en­forcement 7(k) overtime threshold for a seven-day work period is 43 hours; for firefighters it is 53 hours.

Most law enforcement officers, however, have work schedules that result in 40 hours in a seven-day pe­riod. Many firefighters have schedules resulting in less than 53 hours in a seven-day period. Gap time are the hours worked between the employ­ee’s regularly scheduled hours and the Section 7(k) overtime threshold. So, for example, a 40-hour deputy sheriff’s gap time would be the three hours before the FLSA’s Section 7(k) overtime threshold is reached.

The Fourth Circuit began by describing the problem: “There are two types of gap time – pure gap time and overtime gap time. In pure gap time claims, the employee seeks to recover for unpaid straight time in a week in which they worked no overtime. In overtime gap time claims, the employee seeks to recover unpaid straight time for a week in which they did work overtime.

“No provision of the FLSA ex­plicitly governs employee claims to recover for unpaid gap time. We have agreed with other courts that there is no cause of action under the FLSA for pure gap time when there is no evidence of a minimum wage or maximum hour violation by the employer. To be sure, courts may be united in rejecting pure gap time claims under the FLSA, but they are divided on whether an employee can bring an overtime gap time claim for unpaid straight time worked in an overtime week. The FLSA does not include language about overtime gap time, but that does not end our inquiry.

“The Department of Labor has opined that one must first look to the employment agreement to determine whether the employer has first paid all straight time due under the agree­ment. Accordingly, an employee must be compensated at the agreed-upon or regular straight-time rate (rather than the statutory minimum wage rate) before any computation for overtime.

“We give considerable deference to the body of experience and in­formed judgment of the Department of Labor. The Department of Labor’s interpretation was released by the De­partment in 1968 and has remained unchanged for the past 53 years. It is referenced, directly or indirectly, in four other Department interpre­tations, and the Department has re­leased several administrative decisions confirming the continued validity and relevance of this interpretation. Further, this interpretation makes sense as it reflects the policy objective of the FLSA overtime provision by ensuring employers do not mitigate or skirt the financial pressures of working their employees above the 40-hour threshold.

“Allowing any amount other than the full amount of straight-time wages to count as compliance would frustrate the purposes of the FLSA just as surely as would nonpayment for specified hours. Such action by employers would defeat the Con­gressional purpose to place a penalty upon the performance of excessive overtime work.

“We apply a two-prong test for determining an overtime gap time violation under the FLSA. A plain­tiff must provide sufficient factual allegations that supports a reason­able inference that: (1) the employee worked overtime in at least one week; and (2) the employee was not paid all straight-time wages due under the employment agreement or applicable statute.”

Conner v. Cleveland County, 2022 WL 53977 (4th Cir. 2022).

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