SCOTUS Takes A Pass On "Gap Time" Dispute

Published date20 December 2022
Subject MatterEmployment and HR, Employee Benefits & Compensation
Law FirmProskauer Rose LLP
AuthorMr Allan Bloom

It's two months into argument season at the Supreme Court, and we're always keeping our fingers crossed that the justices will take up a wage and hour issue and clear up some ambiguities in the law or a circuit split.

Top billing this SCOTUS term goes to Helix Energy Solutions Group, Inc. v. Hewitt, in which the Court will address whether a supervisor who earned more than $200,000 a year but was paid on a daily basis is exempt from the overtime laws as a "highly compensated employee" under 29 C.F.R. ' 541.601, notwithstanding the salary basis rules in 29 C.F.R. ' 541.602 and 29 C.F.R. ' 541.604. The Court held arguments on October 12, and you can read the transcript here. We'll report on that decision as soon as it's published.

This week's news is a denial of a petition for a writ of certiorari in Cleveland County, North Carolina v. Conner, a case about gap time. The plaintiff in the case-an EMT worker-was paid under a fairly complex set of ordinance-based and contractual terms, but the gist of her claim was that the county shorted her on straight-time pay she was owed under her contract, and by doing do violated the Fair Labor Standards Act. The district court dismissed the claim, on the ground that the FLSA governs minimum wage and overtime pay, but not straight-time pay (assuming no minimum wage violation). On appeal, however, the Fourth Circuit noted that "there are situations . that fall between [the minimum wage and overtime] provisions of the FLSA. It explained:

In addition to seeking unpaid overtime compensation, employees may seek to recover wages for uncompensated hours worked that fall between the minimum wage and the overtime provisions of the FLSA, otherwise known as gap time .. Gap time refers to time that is not directly covered by the FLSA's overtime provisions because it does not exceed the overtime limit, and to time that is not covered by the FLSA's minimum wage provisions because ... the employees are still being paid a minimum wage when their salaries are averaged across their actual time worked. (Internal citations and alterations omitted.)

The Court of Appeals differentiated between two types of gap time-"pure gap time" and "overtime gap time"-with the former referring to unpaid straight time in a week in which an employee works no overtime, and the latter referring to unpaid straight time in a week in which the employee works overtime. The court noted, correctly, that no provision of the FLSA addresses gap time of either type...

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