Generally speaking, the FLSA requires that employers pay employees the required minimum wage and overtime for all hours worked in excess of 40 hours in any workweek (at a rate of one and one-half times the employee’s regular rate of pay). Accordingly, courts have consistently held that the FLSA provides employees with a basis to sue for the recovery of unpaid wages if an employee is paid below the required minimum wage or an employee is not adequately compensated for overtime hours worked in excess of 40 hours.

But what about claims that do not fit neatly into either of those two buckets? Cue in gap-time claims.

What are gap-time claims?

A gap-time claim is one where an employee:

1. has not worked more than 40 hours in a given workweek but seeks recovery of unpaid straight time worked (generally referred to as “pure gap-time” claims); or
2. has worked over 40 hours in a given workweek but seeks recovery for unpaid hours worked under 40 hours (generally referred to as “overtime gap-time” claims).

Circuit split

While an overwhelming majority of courts have held that pure gap-time claims are not cognizable pursuant to the FLSA, there has been less consensus regarding overtime gap claims. Most recently, the Fourth Circuit, in Cleveland County v. Conner, held that while there is no cause of action for pure gap-time claims pursuant to the FLSA, employees can maintain a cause of action for overtime gap-time claims. 22 F.4th 412 (4th Cir.), cert. denied sub nom. Cleveland Cnty. v....

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