On November 12, 2014, the Court of Appeals for the Ninth Circuit joined the First, Second, and Third Circuits in holding that a plaintiff cannot state a plausible claim under the Fair Labor Standards Act (“FLSA”) by merely reciting conclusory allegations that mimic the statutory language.

The case, Landers v. Quality Communications, No. 12-15890, presented the Ninth Circuit with an opportunity to consider the degree of specificity required to state a claim for failure to pay minimum wages or overtime wages under the FLSA in light of recent decisions by the United States Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-70 (2007). In Twombly and Iqbal, the Supreme Court held that, in order to survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570).  It further concluded that a pleading that offers mere “labels and conclusions,” a “formulaic recitation of the elements of a cause of action,” or “naked assertions devoid of further factual enhancement” is insufficient to state a claim. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555, 557).

In considering the particular facts that must be alleged by a plaintiff in order to plausibly state a claim under the FLSA, the Landers court looked to the following opinions from the First, Second, Third, and Eleventh Circuits:

• Pruell v. Caritas Christi, 678 F.3d 10 (1st Cir. 2012): The First Circuit concluded that the plaintiffs’ allegation that they “regularly worked hours over forty in a week and were not compensated for such time” was insufficient to state a claim, noting that the complaint lacked examples of unpaid time, a description of work performed during overtime periods, or estimates of the overtime amounts owed. 
• Lundy v. Catholic Health System of Long Island, Inc., 711 F.3d 106 (2d Cir. 2013): The Second Circuit concluded that no plausible FLSA claim was pled where plaintiffs failed to allege “a single workweek in which they worked at least 40 hours and also worked uncompensated time in excess of 40 hours.”
• Nakahata v. New York-Presbyterian Healthcare System, Inc., 723 F.3d 192 (2d Cir. 2013): The Second Court concluded that the plaintiffs’ allegation that they “were not paid for overtime hours worked” and “were not compensated for work performed during meal breaks, before and after shifts, or during required trainings” failed to state a plausible claim under the FLSA because the plaintiffs failed to allege that they were scheduled to work 40 hours in a given week. 
• Dejesus v. HF Management Services, LLC, 726 F.3d 85 (2d Cir. 2013): The Second Circuit concluded that no plausible FLSA claim was stated where, although the plaintiff alleged that in “some or all weeks she worked more than forty hours a week without being paid 1.5 times her rate of compensation,” she did not “allege overtime without compensation in a given workweek” as required by Lundy.
• Secretary of Labor v. Labbe, 319 F. Appx. 761 (11th Cir. 2008) (per curiam): In an unpublished decision, the Eleventh Circuit concluded that a FLSA claim is straightforward and does not involve a high level of complexity and, accordingly, held that the allegation that the defendant “repeatedly violated stated provisions of the FLSA by failing to pay covered employees minimum hourly wages and to compensate employees who worked in excess of forty hours a week at the approximate rates” stated plausible claims for relief.
• Davis v. Abington Memorial Hospital, 765 F.3d 236 (3d. Cir. 2014): The Third Circuit concluded, consistent with the Second Circuit in Lundy, that no plausible claim was stated under the FLSA where plaintiffs contended that “[b]ecause they typically worked full time, or very close to it and also worked several hours of unpaid work each week,... it is certainly plausible that at least some of the uncompensated work was performed during weeks when the plaintiffs’ total work time was more than forty hours.” The court reasoned that none of the plaintiffs alleged that extra hours were in fact worked during a particular 40-hour workweek.

The Ninth Circuit in Lundy, “persuaded by the rationale espoused in the First, Second, and Third Circuit cases,” concluded that it is insufficient for plaintiffs to state a FLSA claim by setting forth “conclusory allegations that merely recite the statutory language...” Instead, the Lundy court held that “in order to survive a motion to dismiss, a plaintiff must allege that she worked more than forty hours in a given workweek without being compensated for the overtime hours worked during that workweek.” Applying that standard to the complaint before it, the Lundy court concluded that the plaintiff failed to state a claim because he did not allege facts showing that there was a specific week in which he was entitled to but denied minimum wages or overtime wages.

In so holding, the Ninth Circuit took care to point out that no circuit court had gone so far as to require FLSA plaintiffs to plead in detail the number of overtime hours worked, their wages, or the amount of overtime owed, noting that most, if not all, of the detailed information concerning a plaintiff-employee’s schedule and compensation is in the control of the defendant-employer. The Ninth Circuit also declined to “impose a requirement that a plaintiff alleging failure to pay minimum wages or overtime wages must approximate the number of hours worked without compensation.”

In light of the Lundy opinion, and the majority trend of the circuit courts, defendant-employers would be well advised to take a close look at the specificity of the allegations in a FLSA complaint and consider filing a motion to dismiss where those allegations do not appear to rise to the level of plausibility demanded by Iqbal and Twombly.