The U.S. Court of Appeals for the Ninth Circuit makes pleading Fair Labor Standards Act (FLSA) violations more difficult by applying the heightened standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
The FLSA establishes standards such as the national rate of minimum wage, 40-hour work weeks, overtime pay of one and a half times an employee’s regular rate of pay, and employer record-keeping requirements.1 Until recently, the pleading requirements for FLSA claims have been relatively relaxed, and a plaintiff only needed to make bare allegations of statutory violations to advance to the discovery phase of litigation. Given the large number of FLSA complaints filed over the past few years, many circuit courts are now considering whether bare allegations and conclusory references to the FLSA statutory protections are sufficient to meet the pleading requirements post-Twombly and Iqbal.
On November 12, 2014, the Ninth Circuit decided Landers v. Quality Communications, Inc. et al.2 , which involved claims for unpaid minimum wages and unpaid overtime. The Ninth Circuit affirmed the District Court of Nevada’s granting of Defendant Quality Communications, Inc.’s motion to dismiss Plaintiff Landers’ complaint for failure to state a plausible claim for unpaid wages and overtime. In reaching its decision, the Ninth Circuit adopted the heightened pleading standard in Twombly, and Iqbal, holding that the complaint “must plausibly state a claim that [the employer] failed to pay minimum wages or overtime wages” and may not simply state conclusory allegations.3
In Twombly, the U.S. Supreme Court held that, to satisfy the pleading requirements of Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.”4 The complaint must have “further factual enhancement” to sufficiently state a claim that will entitle the pleader to relief under Rule 8.5 The Supreme Court’s decision in Iqbal further held that a complaint must show that “a claim to relief is plausible on its face.”6 Accordingly, a complaint must plead some amount of facts to show that a claim for relief is not just possible but that it is plausible.7 In other words, a connection must be shown to exist between the complainant’s rights under the statute and the alleged violation that entitles the complainant to the relief requested.
Applying the Twombly and Iqbal standard raises the previously minimal pleading standard in FLSA cases. The Ninth Circuit’s application of this heightened pleading standard to Mr. Landers’ claims was a matter of first impression for the circuit, because it has not had an opportunity, post-Twombly and Iqbal, to address “the degree of specificity required to state a claim for failure to pay minimum wages or overtime under the FLSA.”8 The court acknowledged that there is not a complete concurrence among the circuits that the heightened pleading standard should be applied to FLSA cases. This decision, however, brings the Ninth Circuit in line with the First, Second and Third Circuit courts, which also apply the heightened pleading standard in Twombly and Iqbal to claims asserted under the FLSA.
The First, Second, and Third Circuits require FLSA complaints to state something more than conclusory allegations and a reiteration of statutory standards to show a plausible claim for relief.9 A “plausible” claim, says the U.S. Supreme Court, is one that contains sufficient factual matter that, if accepted as true, allows a court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.”10 The Ninth Circuit agreed with the First, Second and Third Circuits that, “at a minimum, a plaintiff asserting a violation of the FLSA overtime provisions must allege that she worked more than forty hours in a given workweek without being compensated for the hours worked in excess of forty during that week.”11 In other words, the allegations in the complaint must actually assert the facts necessary to draw the basic conclusion that the statute was violated. The court found that Mr. Landers’ complaint made only generalized allegations that the defendant violated the provisions of the FLSA and, as such, the complaint fell short of plausibly stating a claim for relief.
On the other side of the pleading sufficiency debate, the Eleventh Circuit12 has taken the position that claims under the FLSA are straightforward and, therefore, “the quantum and specificity of facts necessary to allege a plausible FLSA claim [is] much lower than that necessary to allege the antitrust claim at issue inTwombly.”13 While the Ninth Circuit did not follow the Eleventh Circuit, it agreed that a plausible claim need not recite detailed factual allegations regarding the hours claimed. The Landers Court determined that a plaintiff asserting FLSA violations can establish a claim “by estimating the length of her average workweek during the applicable period and the average rate at which 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.”14
While there is no concrete list of specific factors used to assess the plausibility of claims or the sufficiency of the facts needed to meet this plausibility standard, it is clear that circuit courts adopting this heightened approach have stopped short of holding that Rule 8 now requires a complaint “to plead in detail the number of hours worked, [the employee’s] wages, or the amount of overtime owed.”15 The circuits agree that discovery is often needed to reach that level of detail.
Defendants in the Ninth Circuit may now rely on the Landers decision to require clearer pleadings in FLSA complaints. In jurisdictions requiring the heightened pleading standard, defendants should examine complaints more closely for basic facts that not only just allege a statutory right and some possible wrongful conduct, but also connect the wrong to a right for relief.