I read an interesting blog post by Epstein Becker on the misunderstood issue of gap time and what that means for employers.  It notes that employees must be paid overtime for hours worked in excess of forty and that there are certain scenarios that do not “neatly” fall into a designated category.  These are so-called “gap time” claims.

The article notes that employees seek gap time money when they have not worked overtime (i.e., more than 40 hours) but seek pay for straight time, so-called “pure” gap time claims, for hours below forty.  The second grouping is when an employee has worked more than forty hours and still seeks pay for hours under that forty-hour dividing line.  These are called “overtime gap time” claims.

Many courts have ruled that these “pure” gap time claims cannot be brought under the Fair Labor Standards Act.  In a recent holding, a federal appellate court, in Cleveland County v. Conner, ruled that workers could seek compensation for overtime gap-time claims although pure gap time claims were not allowed.  However, other Circuits have found that the statute does not allow workers to seek “pure” gap-time monies or, significantly, overtime gap time claims.  The Second Circuit ruled this way in Lundy v. Cath. Health Sys. of Long Island Inc.

The Cleveland County case went up on a petition for certiorari to the US Supreme Court, but the Court declined to take the case.  As the Epstein blog notes, the Court would have examined two crucial gap time questions.  They are whether overtime gap claims can arise under the FLSA and the power of courts to review DOL interpretations (i.e., the regulations) and whether these interpretations are entitled to deference.  Since the Court did not take the case, these questions will await resolution when the “right” case is presented to the Supreme Court.

The Takeaway

Gap time is an esoteric off-the-beaten path issue but still represents a threat that employers need be aware of.  Some federal Circuits are less than sympathetic to such claims, e.g., the Second Circuit while others show some degree of acceptance of such claims.  That means that employers need be acutely aware of the legal doctrines in those jurisdictions in which they operate.  Also, employees can sue in State or federal court and state laws (and DOLs) are often more receptive to these claims.

So be aware…