In Williams v. The Bethel Springvale Nursing Home, the Court denied a motion for summary judgment seeking dismissal of overtime claims under the FLSA and denied a contemporaneous motion for decertification of a collective. See 14-CIV-9383 (NSR) (S.D.N.Y. Sept. 12, 2017).

In Williams, the Named Plaintiff and Opt-In Plaintiffs worked as RN Charge Nurses in a not-for-profit elder care facility. The plaintiffs alleged that they were regularly required to work through lunch breaks without pay at the direction of their supervisors. They further alleged that supervisors refused to sign overtime approval forms, which were required under Bethel policy. Finally, the plaintiffs contended that they were asked to “clock out” but continue working on a regular basis.

The defendant’s primary argument in favor of dismissal was rooted in the non-compensability of “gap” time under the FLSA. Specifically, while the FLSA requires that a minimum wage be paid for all hours worked, and that time and a half be paid for hours in excess of 40 hours worked, a violation does not exist for hours worked under 40 so long as the average hourly wage is equal to or greater than the minimum wage. From this principle, the defendant argued that because the plaintiffs were only scheduled to work 37.5 hours each week, their claims should be dismissed if they could not establish a right to recovery for the delta – 2.5 hours – before overtime became due.

The Court characterized this argument as “absurd.” The Court declared that “work is work” and that recovery of wages was appropriate once the 40-hour threshold was reached irrespective of the average hourly wage earned below 40. The Court found the plaintiffs to have sufficiently raised an issue of fact by testifying that they worked six to eight hours beyond 40 each week without compensation, despite their failure to state the same in interrogatory responses. The Court accordingly denied the summary judgment motion as well as the motion for decertification (without substantive analysis).