A plaintiff raising FLSA claims must show that an employment relationship existed between himself and the putative employers, no matter their number. Often, a plaintiff will name an individual supervisor or manager as a defendant, in addition to the company. In the recent case of Montero v. The Brickman Group et al, a District of New Jersey judge outlined what it means, or does not mean, to be an employer under the FLSA.
Herein, the plaintiff named an individual manager as being someone who "controlled and managed the terms and conditions of employment for employees who worked at Brickman, "including but not limited to their compensation..." He also alleged that he questioned the manager as to why he was not receiving overtime and expressed a concern that he was not being properly paid.
On these facts, ruling on a Federal Rule of Civil Procedure 12(b)(6) Motion, the Court dismissed the action against the supervisor. The Court emphasized that the plaintiff failed to show that the manager had any operational control over him, as to expose him to liability under the FLSA as an employer. The Court also noted that the only basis for these statements made in the Complaint was "information and belief."
The lesson here is that individual managers who are named in a Complaint can be kicked out early in a case, especially if they are a second-level or higher manager whose relationship to the employee is tenuous. Only those supervisors who determined the hours worked and how the employee was paid or classified might potentially be on the hook for wages as an "employer." Tactically, I believe this is a good move for defense practitioners as it shifts the momentum in the case and pushes back.