As I continue this week to recap some important FLSA decisions this summer by the Second Circuit, the next one will be important in the long run for employers.
Wage and hour claims have been a thorn in employers side for a while now. (My friend, Molly DiBianca of the always fabulous, Delaware Employment Law Blog, prefers the term “legal extortion” to many FLSA claims). The Second Circuit has begun to acknowledge this as well in a series of cases it has decided this year — or at least the tension that has developed from such claims.
As the the court recently pointed out, there is a tension between (1) “the frequent difficulty for plaintiffs in such cases to determine, without first having access to the defendant’s records, the particulars of their hours and pay in any given time period” and (2) “the possible use by lawyers representing plaintiffs in such cases of standardized, bare-bones complaints against any number of possible defendants about whom they have little or no evidence of FLSA violations for the purpose of identifying a few of them who might make suitable defendants — which is to say, the ability to engage in “fishing expeditions.”
To help rein in such claims, the Court — through a series of cases culminating earlier this month in Dejesus v. HF Mgmt. Services (download here) is now requiring some basic allegations before allowing FLSA claims to proceed through discovery.
On appeal, the 2d Cir. affirmed the decision of the trial court, finding that the plaintiff had not plausibly alleged that she worked overtime without proper compensation under the FLSA. The court reiterated the standard that it had announced in Lundy v. Catholic Health System of Long Island, decided earlier this year. Specifically, the standard requires a plaintiff to sufficiently allege 40 hours of work in a given workweek as well as some uncompensated time in excess of the 40 hours.
In Lundy, the court did not go so far as to require that the plaintiff include an approximation of the number of overtime hours sought but it did say that including such an approximation “may help draw a plaintiff’s claim closer to plausibility” and thereby avoid dismissal.
Perhaps the most powerful part of the court’s opinion in Dejesus was the acknowledgment that the information about the plaintiff’s allegations rest squarely with the plaintiff. As the court explained, if an employee has absolutely no recollection whatsoever about the times worked, then he or she should not have pursued a claim in court.
For employers in Connecticut, the case won’t have much day-to-day impact. But for those employers who are litigating such cases, the Second Circuit’s standard may be used to help dismiss some FLSA claims at an early (and cheaper) stage in the case for the employer.