Second Circuit Continues to Apply Heightened Pleading Standard in Overtime Claims Under the FLSA

Nakahata v. New York-Presbyterian Healthcare Sys., Inc., No. 11-0734 (2d Cir. July 11, 2013); Dejesus v. HF Management Services, LLC, No. 12-4565, 2013 WL 3970049 (2d Cir. Aug. 5, 2013): In a continuing trend in the Second Circuit Court of Appeals, plaintiffs alleging claims for unpaid overtime under the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL) must provide sufficient factual detail as to their claims to survive Twombly/Iqbal challenges. The Second Circuit first set forth this pleading standard in Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106 (2d Cir. 2013), in March 2013. In Lundy, the Second Circuit held that, in order to survive a motion to dismiss, a plaintiff must, at a minimum, sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours. The Second Circuit declined to set any approximation of the total number of uncompensated hours in a given workweek a necessity in all cases, but noted that an approximation may help bring a plaintiff’s claim closer to plausibility. Otherwise, a plaintiff’s allegations “supply nothing but low-octane fuel for speculation, not the plausible claim that is required” under Twombly/Iqbal.

The Second Circuit has reiterated the specificity requirement in Nakahata and Dejesus. In both cases, the plaintiffs’ claims were dismissed for failure to plead a plausible FLSA overtime claim. In Nakahata, the plaintiffs alleged uncompensated work during meal breaks, training sessions, and extra shift time without demonstrating how the instances added up to 40 or more hours in a given week. The court held that, absent any allegation that the plaintiffs were scheduled to work 40 hours in a given week, the allegations did not state a plausible claim. The court reiterated that plaintiffs must provide sufficient factual detail about the length and frequency of their uncompensated overtime work to support a reasonable inference that they worked more than 40 hours in a given week. In Dejesus, the plaintiff alleged only that she worked more than 40 hours per week during some or all weeks without being paid 1.5 times her rate of compensation. The Second Circuit held that this merely tracked the statutory language of the FLSA and was insufficient to state a claim. The court noted that plaintiffs are not required to keep careful records and plead their hours with mathematical precision, but they are required to draw on their memory and experience to provide complaints with sufficiently developed factual allegations. Collectively, these decisions show the Second Circuit applying scrutiny to avoid “fishing expedition”-type FLSA complaints. Given this requirement, employers that receive such a facially-deficient complaint should therefore consider moving to dismiss at the initial stage of the case.