Human resources professionals often refer to gap time in the employment setting. However, this term cannot be found in the Fair Labor Standards Act (FLSA). Still, it is an important term that impacts how employees are paid in New York and elsewhere.
Gap time is essentially the hours between non-exempt employees’ regular work hours and the 40 hours that employees have to work before they are entitled to overtime pay — or time-and-a-half their regular pay rates. When employees are on the schedule to work for 40 hours a week, no gap time exists. However, it does exist for those working under 40 hours per week — for instance, 37.5 hours a week.
In the above-mentioned case, the gap time is the time that the employee works between the 37.5 hours and the 40 hours. The employee will not receive extra compensation for these extra hours worked if the employer and the employee agreed, when the employee was first hired, that he or she would not receive extra compensation for gap-time hours worked. However, if the employee’s average hourly wage is under the federal minimum wage, the employer would be violating the FLSA by not providing the employee with additional compensation for the gap-time hours worked.
Unfortunately, in some cases, employers refuse to pay their employees for gap-time hours worked, even if they are legally required to do so. In this situation, these employees have the right to seek compensation through the civil court system. An understanding of what facts must be proved will likely be necessary to prevail in this type of case. An attorney in New York can provide the guidance needed to vigorously fight for the gap-time compensation to which one is entitled according to the Fair Labor Standards Act (FLSA).
Source: canons.sog.unc.edu, “Gap Time and the FLSA“, Diane Juffras, Accessed on March 27, 2018