The Lawletter Vol 36 No 4
The decisions by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1951 (2009), established that in order to state a claim for relief, a complaint must include sufficient nonconclusory factual allegations to nudge the claim "across the line from conceivable to plausible." The lower courts are now grappling with just what is required, as a practical matter, in order to sufficiently support a claim. In a recent case, the U.S. District Court for the District of Maryland addressed that question in the context of a wage-and-hour claim for overtime compensation.
The court first noted the elements of a claim for overtime compensation: (1) that the employee had worked overtime hours without compensation, and (2) that the employer knew or should have known that the employee had worked overtime, but failed to compensate him for it. Butler v. DirectSat USA, LLC, Civ. Act. No. DKC 10-2747, 2011 WL 2669349, at *4-5 (D. Md. July 6, 2011). The court then noted that in the wake of the Supreme Court's recent decisions in Iqbal and Twombly, courts across the country have articulated different views as to the level of factual specificity required to sufficiently plead the claim. Id.
The court noted that many courts have required that at a minimum, a plaintiff should allege the approximate number of hours worked for which overtime compensation was not paid. Id. at *4 (citing cases). It noted that many courts, on the other hand, have found sufficient the bare allegation that the plaintiff had worked more than 40 hours per week and not been compensated for the overtime. Id. (citing cases). The court determined that in the case before it, the more lenient approach was appropriate because there were sufficient other allegations, including details of the types of work activities performed during overtime hours, to provide the defendant with enough information to form a response. Id. at *5. This is important because not all "work time" is compensable—travel time to and from work, for example, and time spent on other preliminary and postliminary activities are not generally compensable under the Fair Labor Standards Act.
The issues of how much and what factual specificity is required for wage-and-hour overtime compensation claims will undoubtedly be further addressed and eventually resolved by the courts in the future. In the meantime, it is clearly to everyone's advantage for the plaintiff to include as many nonconclusory factual allegations as s/he has knowledge of, including not only the number of overtime hours worked but the nature of the activities, the relationship of the overtime to the plaintiff's regular hours, and the period during which the failure to compensate occurred.