By: Jim Cline and Sarah Burke
In Whenry v. Board of Commissioners, a Federal District rejected a FLSA claim filed by 66 corrections officers for unpaid wages over mandatory on the job time prior to roll call. The Court held that the Teamster contract that indicated the time was unpaid did not violate the FLSA. The court noted the officers were covered by a 207(k) exemption which created three weekly hours of “gap time” between their 40 regular schedule hours and their 43 weekly 207k hours.
The officers were represented by the Teamsters and were covered by a CBA that provided that employees were required to report ten minutes before their actual shift began and that they would not be paid for this time, nor would it be used in the calculation of overtime. The officers recognized the CBA as controlling, but asserted that the practice of unpaid roll call as described above violated the Pennsylvania Minimum Wage Act as well as the FLSA.
The officers’ employer, the Board of Commissioners of the County of Mercer, disagreed with the allegations arguing that the FLSA provides a remedy for two types of claims in this context—unpaid overtime for work in excess of the regular work week or wages paid below the minimum wage and neither of these things had occurred. Because of this, the Commissioners argued that the officers were making a “gap time” claim and that the Third Circuit had already recognized that there is no cause of action under the FLSA for ‘pure’ gap time wages—that is, wages for unpaid work during pay periods without overtime.
The officers responded that they were not alleging a cause of action for overtime or for pure gap time pay. Rather, they were simply making a straight minimum wage argument for time worked. Specifically, the FLSA requires that minimum wage be paid for all hours worked and the officers claimed that they were being paid below minimum wage for roll call because they are being paid nothing for that 10 minutes of time spent every day prior to roll call.
The district court acknowledged that the FLSA states that
“Compensable hours of work generally include all of the time during which an employee is on duty on the employer’s premises or at a prescribed workplace, as well as all other time during which the employee is suffered or permitted to work for the employer. Such time includes all pre-shift and post-shift activities…”
However, the Court went on to find that this provision of the FLSA “cannot be read in a bubble.” Rather, the overarching goal of the FLSA is to protect employees by providing rules under which an employee must be paid minimum wage or is eligible for overtime pay, something it concluded was not applicable here. The Court cited Third Circuit precedent to demonstrate that because the time spent in roll call was contractually agree to be uncompensated and the calculation of additional pay would not equate to being paid below minimum wage, the officers were not entitled the protections of the FLSA or PMWA.
The court’s discussion of the facts seems incomplete so as to make it difficult to assess its ruling. The “gap time” issue for 207(k) bargaining units that is addressed is one that has been hotly contested over the years and has resulted in frequent confusion. “Gap time” occurs when the contract schedule produces regular hours of work less than that allowed under the 207(k) exemption. In this case, there was a 3 hour gap between the 40 contract work hours and the 43 hours permitted under the FLSA under their defined 7 day cycle.
To the extent that the court ruled that an employer can obtain a union’s agreement that the time be unpaid and still conform to the FLSA, that opinion appears incorrect. It is true that there would be no FLSA cause for action for unpaid time in a nonovertime week. This is because federal courts, with a few exceptions, have held that, they will not find a FLSA violation for unpaid time provided that the average hourly wage for all time worked exceeded the minimum wage. These courts have treated the issue as a contract dispute, not a FLSA issue.
But most courts have applied a different rule during weeks in which overtime was worked. During those overtime weeks, courts have generally held (consistent with DOL regulations) that the employer must pay the regular rate of pay for all hours worked up to the overtime threshold. It appears that this court did not hold the employer to that obligation but its explanation on that point was somewhat unclear.
It cited a local case of Adair v. City of Kirkland in support of its decision but Adair supports the opposite conclusion. In Adair, the Guild and the City had a 207(k) exemption that created a “gap” of 3 hours. The City argued that it had no liability for gap time in nonovertime weeks, with the 9th Circuit agreed. But the 9th Circuit reversed as to overtime weeks, indicating that it was a question of fact whether the officers had or had not been paid for briefing time under the “salary” paid.
The confusion here, as in many cases, turns on whether the employees are paid an hourly wage or a regular “salary.” If there is a fixed “salary” paid for all hours worked, employer have had success claiming this supposedly “off the clock” time was actually paid. (Ultimately in Adair the Kirkland officers were not successful because the District Court, on remand, concluded that the parties agreement was that the weekly salary covered all time, including the preshift briefing.) The FLSA does not support the apparent conclusion reached by this court that a union and employer can simply agree that employees will not be paid hourly wages for time actually worked.
In one way or another, all time worked must be paid in some form or there will be some type of FLSA violation. The extent of the liability may turn on the existence of a 207(k) plan. Such a plan may limit the employer’s liability but it will have to pay for all wages worked at the very least in any week in which overtime is performed.
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