Of late, there have been some favorable decisions for employers on FLSA class action pleading issues.  Now, a losing plaintiff is asking the US Supreme Court to reverse this trend and rule that her action should proceed, notwithstanding that there exists a lack of specific factual details.  The plaintiff contends that the high Court should resolve the split in the Circuits on this matter.  The case is entitled Dejesus v. HF Management Services.

The employee wants the Justices to reverse the Second Circuit.  That Court held that the fact that she did not carefully estimate her hours or submit different/other factual proof to her otherwise naked allegation that she worked more than 40 hours in some weeks was fatal to her case.  The Cert petition contends that this position is contrary to that taken by other Circuits.

Plaintiff’s counsel stated that “as the Second Circuit itself noted in the Dejesus opinion, the federal courts across the country are divided on the issue of FLSA pleading standards — especially after Twombly and Iqbal.”  The lawyer therefore urged the Court to take the case, contending that it is a perfect test case because it was a single plaintiff, rather than a class, action.  The lawyer acknowledged that the issues in those cases are far murkier for individual plaintiffs.

The company filed a motion to dismiss which was granted by the District Court.  The employee appealed to the Second Circuit.  That Court found, contrary to the lower court, that the worker was an “employee” under the Fair Labor Standards Act but nevertheless dismissed the suit.  The Court noted that the plaintiff must not only make a conceivable case, but the allegations must also be “plausible.”  In other words, a plaintiff cannot merely rehash and parrot the general language of the law, but must allege specifics.

The Second Circuit was not asking for Einstein-like precision.  In its opinion, the Court observed that “while this court has not required plaintiffs to keep careful records and plead their hours with mathematical precision, we have recognized that it is employees’ memory and experience that lead them to claim in federal court that they have been denied overtime in violation of the FLSA in the first place.  Our standard requires that plaintiffs draw on those resources in providing complaints with sufficiently developed factual allegations.”

I hope the Court takes it, because I believe that plaintiffs should be compelled to claim actual numbers.  In counseling clients, it is my experience that employees who have been shorted out of one hour know exactly how much they are missing.  Employees who claim they have been often/routinely shorted on overtime should have an idea as to exactly how much they have been denied, if it’s really happening “every week.”