Does the FLSA cover unpaid “gap time”?

As we all should know, the Fair Labor Standards Act requires that employers pay non-exempt employees overtime at a rate of one and one-half times the regular rate of pay for any hours worked in excess of 40 in any given work week. And, it provides a remedy for an employee to sue for unpaid overtime (among other remedies).

What about gap time? “What is gap time,” you ask? It’s employment-law speak for unpaid straight time. Does the FLSA authorize a court to provide a remedy for unpaid straight time (for example, off-the-clock work that does not break the 40-hour weekly threshold)? Or, does the FLSA only authorize back pay for unpaid overtime?

In Murphy v. First Student Management LLC (N.D. Ohio 1/24/17), an Ohio federal court recently decided this very issue.

The plaintiffs, a class of school bus drivers, alleged that off-the-clock work and sought back pay for both unpaid gap time and unpaid overtime.

The court ruled that the FLSA only authorizes unpaid overtime as a remedy, and that the FLSA does not cover gap time. Noting a split between the 4th Circuit (FLSA does not authorize a gap time claim, even when brought with a parallel claim for unpaid overtime) and the 2nd Circuit (holding the opposite), the court dismissed the gap time claim (quoting Espenscheid v. DIRECTSAT USA (W.D. Wis. 4/11/11) [pdf]):

Section 215 of the FLSA lists “prohibited acts” as being a violation of § 206 (minimum wage provision), § 207 (maximum hours provision), § 212 (child labor provision), § 211(c) (record keeping requirements) or regulations issued under § 214 (records requirement for employment of apprentices and those whose earning capacity is impaired by certain characteristics). It does not include in the list a violation for failure to pay straight or gap time wages or the overall compensation anticipated by an employee agreement. … The statute makes no mention of relief in the form of unpaid regular wages for a violation of the maximum hours provision. Stated simply, the FLSA provides no avenue for the recovery of straight-time pay. 

This issue is significant for employers. In addition to back pay, the FLSA also authorizes liquidated damages in an amount equal to the pay employees should have received (i.e., double back pay damages). Thus, if the FLSA covers gap time, an aggrieved employee (or group of employees) could recover double the amount of unpaid gap time. Absent FLSA coverage, Ohio employees are limited to the remedies in Ohio’s wage payment statute, which caps liquidated damages at six percent of the unpaid wages.

Liquidated damages at six percent or 100 percent? It’s pretty obvious which gap time remedy Ohio employers should prefer.