Argued: April 30, 2013
The plaintiff appeals from a judgment of the United States District Court for the Eastern District of New York (Edward R. Korman, Judge) dismissing her claims under the Fair Labor Standards Act and the New York Labor Law. We agree with the district court that the plaintiff failed to allege adequately that she worked overtime without receiving the compensation mandated by the statutes.
ABDUL K. HASSAN, Queens Village, New York, for Plaintiff-Appellant.
SETH L. LEVINE (Scott B. Klugman, on the brief), Levine Lee LLP, New York, New York; Andrew P. Marks, Littler Mendelson P.C., New York, New York, for Defendant-Appellee.
Before: JACOBS, Chief Judge, SACK, Circuit Judge, and Rakoff, District Judge.[*]
SACK, Circuit Judge
This is the third in a series of recent decisions by this Court addressing the question of the adequacy of pleadings alleging that defendant health-care companies failed to pay their employees for overtime work as required by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1). See Nakahata v. New York-Presbyterian Healthcare Sys., Inc., No. 11-0734, __F.3d__, 2013 WL 3743152, 2013 U.S. App. LEXIS 14128 (2d Cir. July 11, 2013); Lundy v. Catholic Health Sys. of Long Island, 711 F.3d 106 (2d Cir. 2013). They each reflect a tension among, inter alia, (1) the frequent difficulty for plaintiffs in such cases to determine, without first having access to the defendant's records, the particulars of their hours and pay in any given time period; (2) the possible use by lawyers representing plaintiffs in such cases of standardized, bare-bones complaints against any number of possible defendants about whom they have little or no evidence of FLSA violations for the purpose of identifying a few of them who might make suitable defendants -- which is to say, the ability to engage in "fishing expeditions"; and (3) the modern rules of pleading established by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Ramona Dejesus was employed in the Borough of Queens, New York, by HF Management Services, LLC ("Healthfirst"), a company that provides support and administrative services to not-for-profit health-care organizations. Dejesus brought the action that is the subject of this appeal on March 15, 2012, in the United States District Court for the Eastern District of New York, claiming that Healthfirst failed to pay her overtime wages under the FLSA and the New York Labor Law ("NYLL").
Dejesus alleged that she was a wage-earning employee of Healthfirst for the three years preceding August 2011, during which time she promoted the insurance programs Healthfirst offered and recruited members of the public to sign up for Healthfirst's services. Compl. ¶¶ 19-20. As a part of her wage agreement, Dejesus was entitled to receive a commission for each person she recruited to join Healthfirst's programs, in addition to her non-commission wage. Id. ¶ 21.
Dejesus also alleged that she worked more than forty hours per week during "some or all weeks" of her employment and, in violation of the FLSA, through April 2011 was not paid at a rate of at least 1.5 times her regular wage for each hour in excess of forty hours. Id. ¶ 24. She relied on the FLSA's provision stating that employers are not permitted to "employ any . . . employees . . . for a workweek longer than forty hours unless such employee receives compensation for his [or her] employment in excess of [forty hours] at a rate not less than one and one-half times the regular rate at which he [or she] is employed." 29 U.S.C. § 207(a)(1).
Dejesus also alleged that there were weeks in which she was paid for her overtime hours but in which Healthfirst "failed to include the commission payments in the calculation of [her] overtime pay." Compl. ¶ 27.
On May 7, 2012, Healthfirst filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Dejesus was exempt from the overtime protections of the FLSA because she was an outside salesperson and that her claim was not properly stated.
The district court (Edward R. Korman, Judge) granted the motion to dismiss. Dejesus v. HF Management Services., LLC, No. 12-cv-1298, 2012 WL 5289571, 2012 U.S. Dist. LEXIS 152263 (E.D.N.Y. Oct. 23, 2012). The court explained that to properly state a claim, Dejesus was required to allege that: "(1) she was an employee eligible for overtime pay; and (2) that she actually ...