Under the Fair Labor Standards Act (FLSA), employers must pay overtime rates for hours actually worked in excess of 40 hours per week.  When an employee’s regular work schedule constitutes less than 40 hours per week, there is room for “gap time” – hours worked over the employee’s normal schedule but not reaching the 40-hour threshold for overtime pay.  Although the employee may consider work above their usual schedule “overtime,” the FLSA does not require overtime compensation until the employee works above 40 hours. 

The FLSA includes an exception for police and fire departments, which generally do not use the typical 40-hour per week work period. These employers can compute overtime based on a work period ranging from 7 to 28 consecutive days.  Law enforcement departments are then required to pay overtime rates for hours worked over 171 hours in a 28-day work period.  Most law enforcement officers have regularly scheduled hours of 160 hours in a 28-day period, leaving open 11 hours of “gap time” before the overtime threshold is reached. 

The Fourth Circuit has affirmed that FLSA does not require law enforcement departments to pay overtime compensation for gap time hours, as long as the employees should reasonably know that their usual compensation covers all hours up to the overtime threshold.  For example, employees may reasonably know this because of a written overtime policy, compensation stated in terms of an annual salary, and regular non-fluctuating paychecks. 

However, the Virginia Code was amended in 2005 to require jurisdictions employing more than 100 law enforcement officers to pay overtime wages for hours worked above “regularly scheduled work hours,” even if the FLSA overtime threshold is not met.  The Code explicitly excludes on-call periods, extra duty assignments, and any other non-fixed hours from “regularly scheduled hours.”  This creates a conflict between federal law and state law in Virginia.  Large law enforcement departments that only follow the FLSA may find themselves liable under Virginia law for back pay to officers who worked gap time hours. 

All employers should stay informed about changes in the law on gap time and overtime compensation.  Law enforcement departments should be especially aware of Virginia law on gap time and take measures to protect themselves against large claims for uncompensated back pay.

Written by Lauren Ramos.