Generally speaking, the FLSA requires that employers pay employees the required minimum wage and overtime for all hours worked in excess of 40 hours in any workweek (at a rate of one and one-half times the employee’s regular rate of pay). Accordingly, courts have consistently held that the FLSA provides employees with a basis to sue for the recovery of unpaid wages if an employee is paid below the required minimum wage or an employee is not adequately compensated for overtime hours worked in excess of 40 hours.

But what about claims that do not fit neatly into either of those two buckets? Cue in gap-time claims.

What are gap-time claims?

A gap-time claim is one where an employee:

  1. has not worked more than 40 hours in a given workweek but seeks recovery of unpaid straight time worked (generally referred to as “pure gap-time” claims); or
  2. has worked over 40 hours in a given workweek but seeks recovery for unpaid hours worked under 40 hours (generally referred to as “overtime gap-time” claims).

Circuit split

While an overwhelming majority of courts have held that pure gap-time claims are not cognizable pursuant to the FLSA, there has been less consensus regarding overtime gap claims. Most recently, the Fourth Circuit, in Cleveland County v. Conner, held that while there is no cause of action for pure gap-time claims pursuant to the FLSA, employees can maintain a cause of action for overtime gap-time claims. 22 F.4th 412 (4th Cir.), cert. denied sub nom. Cleveland Cnty. v. Conner, 143 S. Ct. 523 (2022). In support, the Fourth Circuit afforded considerable deference (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)) to the Department of Labor’s long-standing interpretive guidance found in 29 C.F.R. § 778.315, titled “Payment for all hours worked in overtime workweek is required.” The court emphasized the following language within the interpretive guidance (which the Fourth Circuit found to be persuasive):

“[E]xtra compensation for the excess hours of overtime work under the Act cannot be said to have been paid to an employee unless all the straight time compensation due him for the nonovertime hours under his contract (express or implied) or under any applicable statute has been paid.”

The Fourth Circuit interpreted the language above to suggest that an employee “must be compensated at the agreed-upon or regular straight time rate (rather than the statutory minimum wage rate) before any computation of overtime.” (Emphasis added.)

In contrast, other circuits, such as the Second Circuit, have historically held that the FLSA does not provide the statutory authority to recover for pure gap-time claims nor overtime gap-time claims. See, e.g., Lundy v. Cath. Health Sys. of Long Island Inc., 711 F.3d 106 (2d Cir. 2013). Significantly, the Second Circuit afforded no weight or deference (likewise relying on Skidmore) to the same interpretive guidance relied on by the Fourth Circuit in its decision, finding § 778.315 lacked persuasive authority and had no statutory support.

The Supreme Court of the United States recently had the opportunity to review a petition for writ of certiorari by Cleveland County which sought to answer two central questions prompted by the circuit split noted above, namely:

  1. whether overtime gap-time claims are cognizable pursuant to the FLSA; and
  2. the authority of courts to independently evaluate an agency’s non-binding interpretations of a statute pursuant to Skidmore.

As the Supreme Court declined to review, the definitive answer to both questions will not be established until a later date. Thus, for the time being, the viability of overtime gap-time claims pursuant to the FLSA will vary by jurisdiction.

What about state law?

Employers that operate in jurisdictions that do not recognize gap-time claims should still be aware of the alternative avenues that plaintiffs may utilize to seek relief for what are, in essence, gap-time claims under either state statutory or common law causes of action. These causes of actions may, at times, provide for greater forms of relief and/or longer statutes of limitations to file suit.  Consequently, employers are encouraged to consult with counsel to ensure that their compensation practices are compliant with the laws in all jurisdictions in which they operate.

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