Apologies to John Steinbeck, but in some ways, both 2013 and 2014 have been the winters of FLSA plaintiffs’ discontent on the East Coast. Last summer, the Second Circuit (which covers New York, Connecticut, and Vermont) issued a number of decisions tightening pleading standards under the Supreme Court’s decisions in Iqbal and Twombly. In one of those cases, Lundy v. Catholic Health System of Long Island, the court held that “in order to state a plausible FLSA overtime claim, a plaintiff must sufficiently allege [forty] hours of work in a given workweek as well as some uncompensated time in excess of the [forty] hours.” In Lundy and other cases, the Second Circuit affirmed dismissals because the plaintiffs had failed to provide any facts or estimates to support the number of hours they worked and had simply “rephrased” the FLSA’s requirements as factual contentions.
Last month, in Spataro v. GEICO, a judge in the Eastern District of New York dismissed a plaintiff’s FLSA and New York Labor Law collective and class action complaint because he had pled “no facts that suggest that GEICO failed to pay Plaintiff the proper amount of overtime pay.” The plaintiff had provided no facts to support his off-the-clock work claim such as “an estimate of hours Plaintiff failed to report or who allegedly discouraged adjusters from reporting overtime.” The plaintiff compounded his problems by claiming that GEICO failed to compensate him for time he worked between 38.75 and 40 hours per week, which the court observed “does not state a claim that GEICO failed to pay proper overtime.”
The Third Circuit (Pennsylvania, New Jersey, and Delaware) has also begun to clamp down on “barebones” complaints, most recently in Davis v. Abington Memorial Hospital, decided late last month. In Davis, the Third Circuit “agree[d] with the middle-ground approach taken by” the Second Circuit that requires plaintiffs in FLSA cases to provide more than just generalized allegations regarding the hours they worked to satisfy the Supreme Court’s Iqbal/Twombly standard.
As in Lundy, the plaintiffs in Davis had alleged in very general terms that the hospital “did not compensate them for hours worked in excess of forty per week during meal breaks, at training programs, and outside of their scheduled shifts.” The Third Circuit rejected this pleading, citing the Second Circuit’s standard in Lundy. Each named plaintiff had alleged vaguely that he or she “typically” worked shifts totaling between 32 and 40 hours per week and “frequently” worked extra time. However, none of the named plaintiffs alleged even a single workweek in which he or she worked at least forty hours and also worked uncompensated time in excess of forty hours, despite the “typical” and “frequent” language in the complaint.
The cases continuing to come out of both the Second and now Third Circuits show that employers who do end up in litigation in those jurisdictions have room to push plaintiffs to provide some detailed factual allegations in their pleadings or face motions to dismiss. Particularly with ever increasing numbers of FLSA and minimum wage lawsuits in federal courts, courts in the Second and Third Circuits appear poised to dismiss poorly drafted complaints with only vague recitations like the ones in the cases above. For employers outside of the Second and Third Circuits, remember, too, that the ability to dismiss a barebones complaint will depend on the standards in those courts. Not all of them have interpreted the Twombly/Iqbal standards quite as strictly in FLSA cases. Eventually, perhaps we will even see more courts adopt the approach used by courts like the Middle District of Florida, which imposes orders requiring plaintiffs to make pre-suit demands and to document the main points of their claims early in litigation. Until then, we’ll keep you up to date as appellate standards continue to evolve.