In any litigation, obviously, the plaintiff(s) bear an initial burden of proof that must be met before the burden shifts to the defendant to rebut.  In a Fair Labor Standards Act case, especially an overtime case, that initial burden means making some showing as to how many hours exceeding forty were worked per week.  In a dangerous case for the employer community, the Second Circuit has now concluded that such a showing may not be fundamental to the employee claims.  The case is entitled Abbott v. Comme Des Garcons Ltd. and issued from the Second Circuit Court of Appeals.

In this case, a group of first line managers sued for overtime.  They claimed they were non-exempt and the executive exemption did not apply.  The district court would not allow the suit to proceed, as the plaintiffs had not delineated the number of overtime hours they worked in the weeks for which they claimed the money.  The appellate court disagreed.  The Court found the allegations sufficient even where they only consisted of claims that the employees worked through their breaks and exceeded forty hours on a weekly basis.

This is a reversal of the Second Circuit position on this matter going back a decade.  The Court had affirmed the dismissal of cases where the plaintiffs had not properly pled their claim for overtime hours.  For example, in one case the Court would not allow a case to proceed where the plaintiffs did not give enough specificity regarding the length of time overtime was not paid and the number of hours claimed above forty, although acknowledging that the wages might not have been paid.

Now, the Second Circuit has changed its tune.  It observed that the plaintiffs showed they worked a set number of shifts each week and that the length of each shift, coupled with an estimate of total hours worked, was sufficient to sustain the suit.  To the Court, these claims set forth what it deemed a “plausible claim of overtime.”  Given that, no weekly detailing of overtime hours was required.  The plaintiffs’ allegations that they performed “extra” work or post-shift duties also bolstered their claim that they worked more than forty hours per week.  Thus, the Court could “infer that they were entitled to overtime under the FLSA.”

The Takeaway

This is a dangerous decision for employers, represents a wild pendulum shift in this highly respected Circuit’s opinion and robs employers of a valid, up-front, defense.  Not only is the decision precedential in this Circuit, but my reading the tea leaves convinces me it may persuade other Circuits to follow it.  One answer, as I have been urging clients for years (with varying success) is to convert first level Managers, or “Assistant Managers” to hourly and totally avoid this quagmire.

Just makes it a lot easier for employers…

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