For years, employers have been frustrated by lengthy and costly FLSA litigation prompted by little more than conclusory allegations that the plaintiff and a putative class were not paid for all of their overtime work. Since the Supreme Court clarified the federal pleading standards in Twombly and Iqbal, the doors to the courthouse may be getting a little heavier as district and circuit courts consider the degree of specificity with which plaintiffs must plead their overtime claims.
Following the Supreme Court’s decisions in Twombly and Iqbal, the 1st, 2d, and 3rd Circuits have all held that a bare-bones complaint for unpaid overtime that simply parrots the text of the FLSA will not do. To survive a motion to dismiss, plaintiffs in the first three circuits must instead include some factual allegations that they actually worked more than 40 hours in a given workweek without being paid for that time. This week, the 9th Circuit joined their bandwagon.
In Landers v. Quality Communications, the 9th Circuit considered the overtime claims of a cable services installer whose complaint alleged that (1) he was paid on a de facto piecework basis; (2) his wages fell below minimum wage; and (3) he was not paid overtime when he worked more than 40 hours. Quality Communications moved to dismiss the complaint because it failed to state a plausible claim for relief. The district court agreed and threw out the case. In doing so, the court noted that the complaint lacked any factual allegations approximating the number of overtime hours Landers worked or the amount of overtime pay he was claiming. Landers’ formulaic recitation of the elements was simply not enough to move his claim from the possible to the plausible. Landers declined to amend his complaint and instead immediately appealed to the 9th Circuit.
On appeal, the 9th Circuit affirmed the district court’s decision but expressly declined to adopt a requirement that an FLSA complaint must include an approximation of the total overtime hours worked or overtime wages allegedly due. Instead, the Court fell in line with the 1st, 2d, and 3rd Circuits and held that to state a viable claim for relief, an FLSA plaintiff at least needs to point to a specific week during which he worked more than 40 hours without being paid for all of that time. Landers failed to do so and the district court was therefore right to throw out his case. Moreover, because Landers explicitly declined to amend his complaint, he was not given the chance to amend his complaint on remand.
This decision is unlikely to put an end to the high volume of FLSA cases filed in the 9th Circuit or elsewhere because most plaintiffs will be given the opportunity to replead their case even if their complaint is challenged on a motion to dismiss. Even so, this is a positive development because a heightened pleading standard should mean that plaintiff’s theory of the case will be less of a mystery and hopefully less of a moving target. As a result, employers faced with an overtime claim should be able to more narrowly focus discovery and hopefully limit or defeat efforts at collective certification.