Nearly a decade ago, the U.S. Court of Appeals for the Second Circuit issued three decisions clarifying and tightening the standard for asserting plausible overtime claims under the Fair Labor Standards Act (FLSA) in the Second Circuit. The Second Circuit further elaborated on the pleading standard for an FLSA overtime claim in a recent decision – Herrera v. Commes Des Garcons et al., No. 22-1962-cv, 2023 WL 6798604 (2d Cir. Oct. 16, 2023) – holding that plaintiffs need only allege they worked unpaid hours over 40 each week they were employed as part of their regularly scheduled workweek to survive dismissal of their complaint.

In response to the complaint in Herrera, which was filed in the Southern District of New York, the defendants sought dismissal of the plaintiffs’ claims under Federal Rules of Civil Procedure 12(b)(6), which allows a complaint to be dismissed for failure to state a claim upon which relief can be granted. Generally, this means that if the plaintiff’s complaint does not allege sufficient facts that would “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,”¹ the court dismisses the complaint (which could be in part or in its entirety), at which point the dismissed claims (or entire case) are discontinued. At the district court level, the defendants in Herrera succeeded in dismissing the plaintiffs’ complaint. On appeal, however, the Second Circuit reversed the district court’s decision, authorizing the plaintiffs to move forward with their lawsuit.

Background of Herrera and Prior Decisions

The plaintiffs in Herrera are former managers of Dover Street Market New York, an upscale clothing store, who disclaimed their managerial responsibilities. The plaintiffs brought their lawsuit alleging overtime pay violations. In bringing FLSA overtime violation claims, the plaintiffs alleged they:

• worked four to five hours beyond 40 per week by working through lunch breaks when the plaintiffs were scheduled to work five days per week for opening or closing shifts of approximately nine hours each day;
• worked additional hours outside of their regular schedules, such as by engaging in post-shift duties of sending reports and messaging clients for approximately five hours more every week and handling shipments twice a week for about three more hours per week; and
• twice worked two 13-hour shifts in a single week in addition to their base hours dealing with “seasonal changeover of merchandise” in 2018.

On the defendants’ motion, the district court dismissed the complaint, reasoning that it was devoid of factual allegations, such as not alleging the frequency and duration during which the plaintiffs worked through lunch breaks, and how many 13-hour shifts the plaintiffs worked. 

Upon appeal by the plaintiffs, however, the Second Circuit reversed the district court’s decision. In doing so, the appeals court cited to three Second Circuit decisions from 2013 that clarified the pleading standard for plaintiffs asserting overtime claims under the FLSA. In all three of these 2013 cases, the Second Circuit affirmed dismissal of the respective complaints for failure to sufficiently state unpaid overtime claims under the FLSA.

• In Lundy v. Catholic Health Sys. of Long Island, Inc., 711 F3d 106 (2d Cir. 2013), the plaintiffs failed to allege sufficiently both that they worked over 40 hours in any given week and that these hours were unpaid;
• In Nakahata v. New York-Presbyterian Healthcare Sys., 723 F.3d 192 (2d Cir. 2013), the plaintiffs did not provide enough details about the duration and frequency of hours of unpaid work in order for the court to plausibly infer that the plaintiffs worked beyond 40 hours in any given week – despite raising the possibility that they were unpaid; and
• In DeJesus v. HF Mgmt. Servs., 726 F.3d 85 (2d Cir. 2013), the complaint did not provide specific allegations of the estimated number of hours worked in a given week.

The Second Circuit Court’s Decision in Herrera

Based on the foregoing, the Second Circuit reversed the district court, finding that the plaintiffs sufficiently specified (1) that the plaintiffs’ regularly scheduled work hours consisted of a specified number of shifts per week; and (2) the length of each shift, as well as the estimated total number of hours worked over 40 in any given week. The court held that these allegations allowed an inference of a “plausible claim of overtime” and that no “week-by-week recounting of the hours they worked” was necessary. Further, according to the court, the plaintiffs’ additional allegations of the hours they devoted to post-work duties (e.g., handling shipments and merchandise, and more), and that these hours totaled a certain number of hours over 40 per week, also “carr[ied] the Plaintiffs over the forty-hour bar and permit[ted the court] to infer that they were entitled to overtime under the FLSA.”  By reversing the district court’s decision, the Second Circuit stated that the lower court imposed an “unduly high bar” for the plaintiffs to adequately plead FLSA violations.

Takeaways

This decision could be significant for New York wage-hour lawsuits, as the Second Circuit has clarified its pleading standard for overtime FLSA claims through this decision, essentially providing a clearer roadmap for pleading a viable claim for unpaid overtime. Notably, this decision may also affect the pleading standard for overtime claims under New York Labor Law (NYLL), because New York courts analyze pleading standards for the NYLL in accordance with the FLSA.