The days of cursory pleading in FLSA cases have ended. That’s the message the Third Circuit sent a few days before Labor Day, when it issued Davis v. Abington Memorial Hospital. In Davis, the Third Circuit held that it wasn’t sufficient for the plaintiffs, a group of nurses, to generically allege that they “typically” worked forty-hour weeks and “frequently” worked extra time. Instead, in order to plead a “plausible” claim, the plaintiffs needed to allege that they actually worked unpaid extra time during a week when they worked at least forty-hours. Because the plaintiffs failed to allege a single week in which they actually worked unpaid overtime, the Third Circuit affirmed the dismissal of their claims.
In so ruling, the Third Circuit expressly adopted the Second Circuit’s approach in Lundy v. Catholic Health System, which we blogged about last year. That ruling has helped weed out baseless wage-and-hour claims before discovery, while at the same time providing plaintiffs with a roadmap for how to successfully plead an FLSA claim.
Employers should expect Davis to have a similar effect. Indeed, Davis even comments that “a plaintiff’s claim that she ‘typically’ worked forty hours, worked extra hours during such a forty-hour week, and was not compensated for” that time “would suffice” to plead a claim. (emphasis supplied). Given this explicit guidance, plaintiffs who have cognizable FLSA claims should know exactly how to plead them. And, with Lundy and now Davis the law—at least in two circuits—plaintiffs who fail to plead this kind of specificity are likely signaling that they cannot. Employers should seriously consider moving to dismiss these kinds of complaints.
Davis did not entirely follow Lundy, however, in one aspect. The Third Circuit passed up an opportunity to clarify whether so-called “gap time” claims for allegedly unpaid time below 40 hours a week are ever cognizable under the FLSA. Lundy held they were not. And, while the Third Circuit did not disagree, it had no reason to go so far. The Davis plaintiffs failed to plead they ever worked overtime. Thus, the Third Circuit saw no need to reach whether an “overtime gap time” might be viable (i.e., a claim for unpaid hours below 40 hours a week, during a week when an employee also works overtime). Instead, given the allegations before it, the Third Circuit held only that the FLSA does not permit recovery for “pure” gap time claims—that is, claims for allegedly unpaid work “during pay period without overtime.” That issue will wait for another day. And, in the meantime, even Davis’ more limited “gap time” holding should provide some relief to employers—particularly with respect to employees who work significantly less than 40 hours a week (a trend that the Affordable Care Act may accelerate). After Davis, such employees will need to show at the outset that their allegedly uncompensated time either drops them below the minimum wage, or pushes them above 40 hours a week. Many won’t be able to, thereby saving employers from the burden of defending against these suits.