Employers have long known that the Supreme Court’s decisions in Twombly and Iqbal provide them with a powerful weapon in moving to dismiss broadly worded complaints filled with conclusory allegations but little factual detail. But courts are only just beginning to apply these higher pleading standards to FLSA claims for minimum wage and overtime.
On November 12, 2014, the Ninth Circuit in Landers v. Quality Communications, Inc., joined the First, Second and Third Circuits in ruling that FLSA complaints should be held to the same higher pleading standards set forth in Twombly and Iqbal (the Eleventh Circuit has disagreed). To survive a motion to dismiss, plaintiffs must do more than simply allege that they were not paid minimum wage or that they worked more than 40 hours per week on occasion (or even most of the time) and that they are entitled to overtime. These statements are merely consistent with an employer’s alleged liability, but fall short of crossing the line from possibility to “plausibility of entitlement to relief.”
Rather, “in order to survive a motion to dismiss, a plaintiff asserting a claim to overtime payments must allege that she worked more than forty hours in a given workweek without being compensated for the overtime hours worked during that workweek.” Thus, for example, a plaintiff can establish a plausible claim by estimating the length of her average workweek during the applicable period and the average rate she was paid, the amount of overtime wages she believes she is owed, or any other facts that will permit the court to find plausibility. However, the plaintiff need not plead detailed factual allegations regarding the precise number of overtime hours worked, or even provide an “approximation” of overtime hours worked.
So what does all of this mean for employers facing FLSA claims – particularly those with employees in California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington (not to mention those operating within the First, Second and Third Circuits)? It means that employers can and should strongly consider going on the offensive early by making a motion to dismiss a poorly drafted complaint.
This is particularly true where the complaint: (i) contains only broad legal conclusion or parrots the FLSA’s statutory language, with little or no detail or factual allegations actually fleshing out the claims; or (ii) fails to identify any particular weeks in which the plaintiff was denied minimum wage or worked more than 40 hours without proper overtime pay (i.e., simply alleges that in the “typical” week, plaintiff worked more than 40 hours and was not properly paid, but does not specify any weeks in which this actually happened).
Certainly, an early motion to dismiss could simply result in an amended complaint with more factual details. But this is hardly a typical “worst case scenario” – it might just provide the employer with additional (incorrect) “facts” or claims to attack in deposition, on summary judgment, or at trial. It also sends a strong message to plaintiff’s counsel and other potential claimants that the case will be hard fought and vigorously defended. The best scenario, of course, is that the case is dismissed and never re-filed; that is the ultimate victory.