Alleging a Failure to Pay Over Time Under the FLSA

On June 19th, 2013, Judge Paul Engelmayer of the South District of New York denied plaintiffs Kamal Boutros and Samuel Zuniga their motion for conditional collective action certification and court-approved notice. In Boutros v. JTC Painting, plaintiffs allege that JTC, a painting contractor that provides commercial painting and decorating services in around New York City, were not paid overtimes as required by the Fair Labor Standards Act (“FLSA”). Boutros worked as a painter from July 2006 to November 2011, earning between $33.50 and $35 per hour, and Zuniga worked as painter since September 2008, earning $34 to $36 per hour. They regularly worked in excess of 40 hours per week but were not paid overtimes as required by the FLSA but just their straight wages. They also allege that JTC employed more than 100 other painters during the relevant time period that JTC failed to pay appropriately.

To state a plausible FLSA overtime claim, a plaintiff must sufficiently allege that he worked more than 40 hours in a given workweek and was not compensated for the hours worked in excess of 40 at “a rate not less than one and one-half times (1.5) the regular rate at which he is employed.” In Lundy v. Catholic Health Sys. Of Long island Inc., which was decided five months after the plaintiffs submitted their complaint, the Second Circuit held that it was not enough for plaintiffs to allege vague and conclusary pleadings such as that they “typically” worked 37.5 hours a week and “occasionally” worked an additional 12.5-hour shift.

The Southern District concluded that statements from the plaintiffs that they “regularly” worked in excess of 40 hours were not sufficiently particular to state a plausible FLSA claim. Plaintiffs do not need to reconstruct the exact hours they worked each week over the entire course of their employment but it does require greater specificity that they worked over 40 hours and were not compensated. The case was dismissed without prejudice to amend their complaint so that it is in compliance with Lundy.

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