Plausibility Made Possible: How Employee Access to Employment Records Overcomes Incongruent FLSA Pleading Standards

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Nathaniel Kinman, Associate Member, University of Cincinnati Law Review

I. Introduction

One of the most unpalatable consequences of a circuit split is that it leads to an incongruent application of the law, often creating varying degrees of access to statutory remedies across jurisdictions. Nowhere is this more readily discernible than the circuit split involving the pleading standards necessary to withstand dismissal of a Fair Labor Standards Act (FLSA) claim seeking unpaid overtime.[1] Notably, the FSLA provides employees a right of action against employers who do not properly compensate employees for their overtime work.[2] Nonetheless, when an employer’s failure to pay overtime wages triggers an FLSA cause of action, courts have grappled with identifying the minimum pleading standards necessary to bring a viable claim.[3]

In addition to the prima facie elements all FLSA overtime complaints must contain, some circuits require plaintiffs allege specific facts to overcome the burden of dismissal, including the specific week the plaintiff was undercompensated for overtime work.[4] While other circuits have declined adopting this heightened fact pleading standard,[5] the degree of detail required of an FLSA overtime complaint is still up for interpretation.[6] Accordingly, this article first addresses the language of the FLSA and the common pleading standards courts grapple with. Next, this article argues that unencumbered employee access to employment records vitiates much of the burden a heightened pleading standard imposes. Lastly, this article suggests that, moving forward, employees should retain personal records of their employment in the absence of legislative movement or Supreme Court guidance.

II. Background

The FLSA aims to create and maintain minimum labor standards for the wellbeing of workers and commerce.[7] Among other things, the FLSA effectuates its goal by requiring that employers compensate employees at a rate of at least one and a half times their regular rate for hours worked in excess of forty per week.[8] To hold employers accountable, employees may bring an action to recover unpaid overtime wages and liquidated damages against a non-compliant employer.[9]

However, before an employee can reclaim her unpaid income, she must plead the prima facie elements of an FLSA action in her complaint.[10] In order to provide defendants with adequate notice,[11] plaintiffs must sufficiently plead the following prima facie elements of an FLSA overtime claim: “(1) that an employer-employee relationship existed; (2) that the employer or its employees engaged in interstate commerce; (3) that the employee worked more than forty hours in a workweek; and (4) that overtime was not paid.”[12]

Notwithstanding these elements, lower courts diverge when it comes how much detail a plaintiff must include in her complaint to withstand a motion to dismiss.[13] Against the backdrop of Bell Atlantic Corp v. Twombly[14] and Ashcroft v. Iqbal,[15] one group of circuits has found that an FLSA overtime claim necessarily requires the plaintiff point to a specific workweek where she was undercompensated for overtime hours worked.[16] The other group of circuits have adopted a more liberal pleading standard by which an FLSA overtime complaint survives a motion to dismiss by simply including “a short and plain statement of the claim showing that the pleader is entitled to relief[,]” thus excluding any need to plead a specific workweek.[17]

III. Discussion

With FLSA overtime claim pleading standards in flux, it is apparent that employees’ access to employment recordkeeping might be the ticket to surviving a motion to dismiss. Indeed, if employees are enabled to obtain employment records, including timekeeping prior to filing a claim, it is likely those documents will supply employees with a greater breadth of factual information to inform more specific pleadings. Consequently, much of the burden associated with heightened pleading standards would be obviated, and delineation among the circuits’ standards, in many instances, would enable greater access to statutory remedies from FLSA overtime violations.

Amidst the split of authority regarding what constitutes sufficient pleadings, Circuits nonetheless agree that employers usually retain the requisite information necessary for a plaintiff to proceed with an FLSA overtime claim.[18] With employers possessing documentation that would only be turned over through discovery, it is easy to see why an employee might struggle to point to a specific week when she was undercompensated for the overtime hours she worked.[19] Further, unpaid overtime complaints under the FLSA can be brought for up to two years after the fact, so having the requisite documentation to support a plaintiff’s memory is vital to establishing a viable claim in jurisdictions requiring the heightened pleading standard.[20]

Fortunately, most states have legislation that allows employees, and even former employees, to access employment files.[21] Additionally, employers are required to retain records of employees’ pay and hours worked.[22] Accordingly, bolstering both current and former employees’ ability to access to their employment records during the statutory timeframe to bring an FLSA overtime claim provides employees the necessary documents to sufficiently plead their case no matter the circuit. However, while employees’ access to employment records varies across states,[23] opportunities to attain documentation that supports allegations of a specific week where an employee was undercompensated for overtime hours may not be realistic. Even under such circumstances where access is more restrictive, plaintiffs may rely on affidavits to support their specific workweek pleadings.[24]

With circuits unable to come to a uniform understanding of what an FLSA overtime complaint must allege to overcome a motion to dismiss, the emphasis should be on pushing state legislatures to require a greater degree of employee access to employment records. By providing employees with access to employment records, it is likely more FLSA overtime litigation will stay out of the courts entirely. Because employers retain much of the information plaintiff’s need to sustain an FLSA overtime claim, legislative policies that release such information upon request will likely increase the viability of plaintiffs’ overtime claims, thus bypassing the legwork of discovery and leading to more out-of-court settlements.

IV. Conclusion

Unfortunately, the current circuit split regarding pleading standards required of an FLSA overtime complaint creates unequal access to remedies the statute intended to provide employees. In the absence of Supreme Court guidance or federal legislative action, employees should push for greater access to their employment records through state action. In the meantime, employees who endure violations of the FLSA overtime compensation standards should be adamant about keeping detailed personal records in the event they bring a claim in a jurisdiction requiring heightened pleading.

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[1] See Jerad T. Whitt, Welcome to the Working Week: The Minimum Pleading Standard for Unpaid Overtime Claims under the Fair Labor Standards Act of 1938, 84 U. Cin. L. Rev. 1455, 1456 (2016) (The majority of circuits require more restrictive pleading standards that force plaintiffs to point to a specific workweek where they were undercompensated for overtime hours while the Eleventh Circuit, and district courts within the Sixth Circuit, have taken a more liberal approach) (citing Pope v. Walgreen Co., No. 3:14-CV-439, 2015 WL 471006, at *24 (E.D. Tenn. Feb. 4, 2015).

[2]  29 U.S.C. § 216(b) (“Any employer who violates the provisions of section 6 or section 7 of this Act [29 USCS § 206 or 207] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation[.]”)

[3] See Whitt, supra note 1 at 1456.

[4] See Gibbs v. Sedgwick Claims Mgmt. Servs., No. 2:21-cv-2153-SHM-cgc, 2022 U.S. Dist. LEXIS 227, at *5 (W.D. Tenn. Jan. 3, 2022) (citing Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106, 113-14 (2d Cir. 2013)).

[5] See id. at *6 (citation omitted).

[6] See Whitt, supra note 1 at 1456

[7] See 29 U.S.C. § 202.

[8]Id. at § 207(a).

[9] Id. at § 216(b).

[10] See Gibbs, No. 2:21-cv-2153-SHM-cgc at *4 (citing Roberts v. Corr. Corp. of Am., No. 3:14-CV-2009, 2015 U.S. Dist. LEXIS 82575, 2015 WL 3905088, at *7-8 (M.D. Tenn. June 25, 2015); Kutzback v. LMS Intellibound, LLC., No. 13-CV-2767, 2014 U.S. Dist. LEXIS 126941, 2014 WL 12843044, at *2 (W.D. Tenn. Sept. 5, 2014)).

[11] See id. at *4-5 (citing Roberts, No. 3:14-CV-2009 at *7-8; Kutzback, No. 13-CV-2767 at *2).

[12] Id. at *5 (citing Grubbs v. D & S Residential Servs., LP, No. 2:20-CV-75, 2020 U.S. Dist. LEXIS 224288, 2020 WL 7015052, at *3 (E.D. Tenn. Sept. 3, 2020).

[13] See Whitt, supra note 1 at 1460 (citing Pope v. Walgreen Co., No. 3:14-CV-439, 2015 WL471006, at 2 (E.D. Tenn. Feb. 4,2015).

[14] 550 U.S. 544 (2007).

[15] 556 U.S. 662 (2009).

[16] See Whitt, supra note 1 at 1460 (citing Landers v. Quality Commc’ns, Inc., 771 F.3d 638, 645 (9th Cir. 2014)).

[17] Id. at 1464 (internal quotation omitted).

[18] See Whitt, supra note 1 at 1469 (citing Pope v. Walgreen Co., No. 3:14-CV-439, 2015 WL 471006, at 5 (E.D. Tenn. Feb. 4, 2015)).

[19]  See id. (“[Necessary documentation] is not available to plaintiffs until discovery, meaning that, though the initial complaint may be sparse in detail, it is reasonable to believe that the employer’s records will provide the required information.”)

[20] See id. at 1470 (citing 29 U.S.C. § 255(a) (2015)).

[21] Diane Cadrain, Setting the Record Straight, SHRM (June 1, 2007), https://www.shrm.org/hr-today/news/hr-magazine/pages/0607cadrain.aspx.

[22] See Whitt, supra note 1 at 1469.

[23] See Cadrain, supra note 21.

[24] See Whitt, supra note 1 at 1464 (“[I]t appears that an affidavit supporting an allegation of a specific workweek in which the plaintiff worked more than forty hours and was not compensated adequately may be sufficient to survive a motion to dismiss[.]”) (citing Landers v. Quality Communications, Inc., 771 F.3d 638, 644 (9th Cir. 2014); Dejesus v. HF Mgmt. Servs., 726 F.3d 85, 90 (2d Cir. 2013)).