Do you frequently work through lunch breaks? Or complete tasks after you’ve clocked out for the day? Unfortunately, the FLSA law may not always work in your favor if you attempt to recover those lost wages.
Gap time—the difference between the hours a person works and the hours for which they are paid—is not always illegal. Recently, a group of health care workers filed a complaint under the Fair Labor Standards Act (FLSA) claiming their employer deducted 30 minutes from their daily pay for lunch, even if they did not take their meal break. The group also alleged that the employer did not pay them for work they did before and after their scheduled shifts or for required training sessions.
The court ruled that gap time doesn’t violate the FLSA because the law only regulates minimum wages and overtime wages. In the case of these health care workers, for their case to be considered an FLSA violation, they would have to show that their lost wages prevented them from earning minimum wage and/or overtime pay.
For example, you’re an hourly worker who worked 39 hours over the course of a week: 35 hours on the clock and 4 hours gap time. For those 35 hours, you were paid $12 an hour for a total of $420. If you divide that $420 by the 39 hours you actually worked, you earned $10.77 an hour. Since $10.77 is more than the federal minimum wage, your employer is not in violation of the FLSA.
However, if your hourly salary was $8 an hour, you would have an FLSA claim since you would have only been paid $280 for 39 hours. This brings your hourly wage to $7.17 an hour—less than federal minimum wage.
You may also have a claim if you worked more than 40 hours when you add the paid and unpaid hours together. In that case, you should have been paid overtime.
In California, if you choose to work through a meal period that your employer has made available, you must be paid as long as your employer knows or has reason to know that you are performing work duties. So, if you do need to work through lunch, it’s important to let your employer know why.
California FLSA law also states that you must be relieved of all duties during a meal period for it to be unpaid. Otherwise, you must be compensated at your regular pay rate. And if your employer requires you to remain on site during a meal period, you must be paid whether you actually work or not.