A gap-time claim is one in which an employee has not worked 40 hours in a given week but seeks recovery of unpaid time worked, or in which an employee has worked over 40 hours in a given week but seeks recovery for unpaid work under 40 hours. An employee who has not worked overtime has no claim under FLSA for hours worked below the 40-hour overtime threshold, unless the average hourly wage falls below the federal minimum wage.
The viability of gap time claims under the FLSA had not yet been settled in the Second Circuit. In Dennis Lundy et al. v. Catholic Health System of Long Island Inc. et al., case number 12-1453, where a putative class sought recovery of overtime and gap time wages, the Second Circuit explicitly held: "So long as an employee is being paid the minimum wage or more, FLSA does not provide recourse for unpaid hours below the 40-hour threshold, even if the employee also works overtime hours the same week [or said another way, '[the] FLSA...
