‘Pure Gap Time’ Is Not Compensable Under The FLSA

Section 7(k) of the Fair Labor Standards Act (FLSA) allows employers to take advantage of longer overtime thresholds for public safety employees. Using a “work period” of between seven and 28 days, an employer need not pay law enforcement officers overtime until they work more than the equivalent of a 40-hour week; for firefighters, the threshold is the equivalent of a 53-hour week.

Work outside of the regular shift but less than the Section 7(k) threshold is often referred to as “gap time.” There are no questions whether work above the Section 7(k) threshold must be paid at the overtime rate. But what of the “gap time” under the threshold but in excess of the employee’s normal work?

A recent federal court decision from Pennsylvania dealt with what is known “pure gap time” under the FLSA, meaning the employee never did work enough hours to cross the Section 7(k) threshold. The suit was brought by corrections deputies for Mercer County, who alleged the County did not pay them for ten minutes of required work time before roll call. Since the employees were scheduled to work 40-hour weeks, even counting every minute of the ten-minute pre-roll call time as work would have only amounted to 50 minutes of work a week, not enough for the deputies to cross the Section 7(k) threshold.

The deputies sought additional compensation at least at the minimum wage for the pre-roll call time. The Court rejected the claim, holding the deputies were entitled to no compensation whatsoever for the additional work.

The Court held that “it is our understanding that the deputies were employed as corrections officers receiving hourly wages of varying rates well above minimum wage. Therefore, the issue in this case boils down to whether the employees are entitled to minimum wage for the ten minutes in which they contractually agreed to work without pay, or do those ten minutes of pay get absorbed into their total pay because it is considered ‘gap time’ and they simply need to be paid at minimum wage for all hours worked.

“There is a clear weight of authority which holds that pure gap time claims – straight time wages for unpaid work during pay periods without overtime – are not cognizable under the FLSA, which requires payment of minimum wages and overtime wages only. The deputies argue that they are not being paid for hours worked according to the FLSA provision which states: ‘Compensable hours of work generally include all of the time during which an employee is on duty on the employer’s premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work for the employer. Such time includes all pre-shift and post-shift activities.’

“However, this provision of the FLSA cannot be read in a bubble. The deputies were compensated at well-above the minimum wage on an hourly basis. The uncompensated time sought was ten or at most 15 minutes a day before roll call. The deputies have not alleged that the calculation of this additional pay would equate to their being paid below minimum wage overall. Given these facts and the fact that the County has negotiated this term into the CBA, it would be logical for us to conclude that the deputies’ higher rate of pay was considered when inserting this unpaid time into the terms of the Agreement.”

Whenry v. Board of Commissioners, 2015 WL 500914 (W.D. Pa. 2015).