We recently settled a Fair Labor Standards Act retaliation case on behalf of an employer for a paltry sum that barely allowed the plaintiff’s attorney to cover his costs. Our client was delighted. The central problem with plaintiff’s case was that he and his attorney failed to realize from the outset that the plaintiff’s underlying complaint about not being paid for a few hours he worked on a single day – the alleged “protected activity” – was not a complaint about a violation of the FLSA, but was in the nature of a “gap time” claim.
Gap time is working time that is not covered by the overtime provisions of the FLSA because it does not exceed the 40 hour per week threshold, and is not covered by the minimum wage provisions because the employee earns more than minimum wage for the work week. Gap time may be the subject of a common law claim for breach of contract, but it is not regulated by the FLSA. See Thrower v. Peach County, 2010 U.S. Dist. LEXIS 116401, 13-14 (M.D. Ga. Nov. 2, 2010) (noting that the “FLSA provides no remedy for a worker who has received at least minimum wage for his or her nonovertime hours, even though they may have been paid less than their actual hourly rate…. Rather, FLSA only governs minimum wage and overtime pay violations.”); Davis v. City of Loganville, 2006 U.S. Dist. LEXIS 20798, 2006 WL 826713, at *9 (M.D. Ga. Mar. 28, 2006) (“[E]mployers are not obligated under the FLSA to compensate employees for ‘gap time,’ as long as the employees receive at least the statutory minimum wage for all nonovertime hours worked.”); Bolick v. Brevard County Sheriff's Dept., 937 F. Supp. 1560, 1568 (M.D. Fla. 1996) (“As a general rule, an employee cannot succeed on a claim under the FLSA if his average wage for a period in which he works no overtime exceeds minimum wage.”) (collecting cases). See also http://www.dol.gov/WHD/opinion/FLSA/2004/2004_10_08_14_FLSA_GapTime.htm (Department of Labor opinion letter noting that “[a]s long as overall earnings for the workweek (exclusive of gap time pay) equal or exceed the amount due at minimum wage for all hours worked, including gap time hours, there is no violation of the FLSA in a non-overtime workweek.”).
Because gap time is not regulated by the FLSA, it follows that an employee’s complaint about not being paid for gap time should not be deemed protected activity under the FLSA. That is because, although a complaint need not refer to the FLSA by name, it must relate to something regulated by the FLSA. See Moore v. Freeman, 355 F.3d 558, 562 (6th Cir. 2004); Lambert v. Ackerley, 180 F.3d 997, 1007 (9th Cir. 1999). As the Supreme Court recently held, the complaint “must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.” Kasten v. Saint-Gobain Performance Plastics Corp., 2011 U.S. LEXIS 2417, *23 (Mar. 22, 2011) (emphasis supplied). See also Hardwick v. Complete Skycap Services, Inc., 2007 WL 2050867 (9th Cir. July 11, 2007) (unpublished) (“the complaints must specifically concern FLSA violations”).
While I have not found any cases that address whether a complaint about not being paid for gap time can constitute protected activity, courts have held that complaints about other pay-related issues that are not regulated by the FLSA do not constitute protected activity. For example, in Alvarado v. I.G.W.T. Delivery Systems, Inc., 410 F. Supp. 2d 1272 (S.D. Fla. 2006), the court held that the plaintiffs failed to make a case for retaliatory discharge under the FLSA where they alleged they were wrongfully discharged for signing and submitting two letters to the defendant requesting, among other things, an increase in salary. The court stated: “The letters signed by the Plaintiffs…fail to meet the elements required for a prima facie case under 29 U.S.C. § 215(a)(3). The letters themselves do not appear to clearly assert rights under the statute in that they make no specific mention of overtime pay or invoke the FLSA.” Id. at 1279.
Similarly, in Morke v. Archer Daniels Midland Co., 2010 U.S. Dist. LEXIS 57357 (W.D. Wis., June 10, 2010), the plaintiff complained that that defendant was engaged in “payroll manipulation and conspiracy to commit fraud” by shorting plaintiff “32 hours of vacation pay.” Id. at *5. The court noted that “failure to pay vacation hours is not a violation of the FLSA because payments for vacation times are not regarded as compensation for working.” Id. at *5-6 (citing 29 C.F.R. § 778.219). “Thus,” the court held, “plaintiff's complaints about denial of vacation pay were not protected under the FLSA and no FLSA-based retaliation claim can arise from them.”
The same logic should apply to complaints about an employer’s failure to pay for gap time. At a pretrial hearing in our recent case, the judge seemed to agree, which is why we were able to settle our client’s case for a nuisance value.
The lesson here is clear. The next time you are defending an FLSA claim based on a failure to pay wages, consider whether the employee is complaining about a minimum wage or overtime violation, or, alternatively, whether the employee is really complaining about a failure to pay wages for gap time. Recognizing this distinction can mean the difference between victory and defeat.