A federal district court judge in Wisconsin recently held that the FLSA does not provide a cause of action for “gap” time claims. “Gap” time generally refers to uncompensated, non-overtime hours. Courts are divided as to whether the FLSA permits such claims.

In Espenscheid v. DirectSat USA, LLC, the employer argued that the plaintiffs could not pursue their claims for gap time because the hours in question were not overtime hours and the plaintiffs’ total compensation for any work week divided by the hours worked during that period did not fall below the minimum wage. The court began its analysis by noting that “most” courts prohibit pure gap claims, i.e., claims for straight time in weeks in which the employee worked no overtime. The court also noted that some courts permit gap time claims for weeks in which the employee worked more than 40 hours and the relevant employment agreement does not expressly or implicitly compensate for all non-overtime hours.

The court ultimately granted the employer’s motion for summary judgment on the gap time issue, holding that the FLSA does not provide a cause of action for gap claims “of any kind.” In reaching its conclusion, the court noted that: (1) the failure to pay for non-overtime hours diminishes the employee’s overall compensation, but there is no language in the FLSA creating a cause of action for diminished overall compensation; (2) the FLSA itself only requires the payment of minimum wages and overtime wages; (3) the FLSA not does expressly prevent an employer from requiring employees to work some hours below the overtime threshold for free, provided the employees’ average wage exceeds the minimum wage; (4) the “prohibited acts” listed in Section 215 of the FLSA do not include failure to pay straight or gap time wages; and (5) the FLSA does not provide an avenue for the recovery of straight time pay.

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