When unpaid ‘gap time’ doesn’t violate FLSA

With collective-action wage-and-hour claims on the rise, employers worry that they may be burned by unpaid work they didn’t even know employees were performing. But a recent appeals court decision provides a rare piece of good news: As long as employees haven’t worked more than 40 hours in any given workweek, so-called “gap time” between hours paid and hours worked doesn’t always mean liability.

If workers make more than minimum wage and their total earnings for the week divided by total time worked still adds up to more than minimum wage, the employer hasn’t violated the Fair Labor Standards Act.

For example, if an hourly employee worked 39 hours in a week but was paid for 35 hours at $12 per hour, he’d still make more than minimum wage for all hours actually worked. (35 hours ? $12 per hour = $420. $420 ÷ 39 hours = $10.77. That’s well over the national minimum wage.)

Recent case: Several hospital ­workers started an FLSA collective action, alleging unpaid overtime and “gap time.” They claimed that sometimes they worked over lunch despite automatically being marked out for the entire period.

Their overtime claims were dismissed because none of the workers could point to a particular week in which they worked more than 40 hours.

The court also dismissed the gap-time claims, concluding that gap time is “non-overtime hours worked for which an employee is not compensated,” and that “when the employee has a sufficiently high hourly rate, when all compensated and non-compensated hours are divided into the weekly pay, the employee’s average hourly pay still exceeds the FLSA minimum,” there is no minimum wage violation. (Davis, et al., v. Abington Memorial, et al., No. 12-3512, 3rd Cir., 2014)