Court of Appeals provides guidance on FLSA pleading

The Court of Appeals has provided guidance on how to plead overtime claims under the Fair Labor Standards Act. This ruling makes it easier for plaintiffs to avoid dismissal under Rule 12(b)(6).

The case is Abbott v. Comme Des Garcons, Ltd., issued on October 16. In 2013, the Second Circuit issued three rulings on this issue in Lundy v. Cath. Health Sys., 711 F.3d 106 (2d Cir. 20013), Nakahata v. New York-Presbyterian, 723 F.3d 192 (2d Cir. 2013), and Dejesus v. HF Mgt. Servs., 726 F.3d 85 (2d 2013), which in a nutshell held that while plaintiffs must plead their overtime claims with "specificity," the pleading standard is not stringent. Rather, they "must sufficiently allege '40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.'" While plaintiffs do not have to make an approximation of overtime hours, the Court has also suggested that "an approximation 'may help draw a plaintiff's claim closer to plausibility'" under the Iqbal plausibility pleading test. So plead it if you got it, but not pleading it is not fatal.

In this case, plaintiffs alleged that they worked five shifts each week, and that each shift lasted between eight and three-quarter hours and nine hours, so that they worked between 43.75 and 45 hours of work per week. That brings us to more than 40 hours per week. Anything more than 40 hours and plaintiffs are entitled to overtime. Plaintiffs also alleged in the complaint that the usually devoted five hours a week to post-work duties, and three more hours each week to receiving shipments of merchandise. They also alleged early arrivals and late departures amounting to an additional five hours per week, in addition to their 40 hour workweeks. Taken together, these allegations show plaintiffs are entitled to overtime pay. They further allege, however, that management did not pay them overtime. Hence the lawsuit.

Defendants argued that complaint is deficient because, under Lundy, plaintiffs have to show the specific weeks they worked more than 40 hours, i.e., they must identify each week they worked their regular schedule. For one plaintiff, that's a more than 100-week task. That argument misreads Lundy and would, contrary to Lundy, require plaintiffs in FLSA cases "to keep careful records and plead their hours with mathematical precision." While Lundy holds that the FLSA complaint will be dismissed if the plaintiffs only allege that at some undefined period in their employment they worked more than 40 hours in a single week, the plaintiffs in this case did not fall below the Lundy standard. The district court's ruling dismissing the complaint is reversed and this case will now proceed to discovery.

The Second Circuit (Lohier, Lynch and Parker) notes how some of the plaintiffs pled their cases, and you can take the following as the Court's legal advice on how to avoid dismissal:

The allegations relating to the individual Plaintiffs in this case easily satisfy this standard. Hennager, for example, alleges that, “[f]rom December 2015 to August 2018, [he] was employed first as a Sales Manager and then as an Assistant Floor Manager, and was not paid overtime.” The Complaint further alleges that all of the Plaintiffs – including Hennager – worked more than forty hours per week as part of their regularly scheduled workweeks. Accepting these allegations as pleaded, Hennager has adequately alleged that he regularly worked more than forty hours per week from December 2015 to August 2018, and that DSMNY’s failure to pay him overtime violated the FLSA.