The number of lawsuits alleging uncompensated work time has skyrocketed in recent years, as employees in many industries, such as health care, retail, food service, manufacturing and financial services, allege that employer practices or policies undercompensate them for required activities. Most of the lawsuits are brought as potential collective actions under the federal Fair Labor Standards Act, and many include claims under analogous state wage laws. The FLSA does not define what constitutes “work” or a “workweek,” and courts have been forced to address these issues in an increasing number of cases alleging unpaid overtime for work performed beyond the statute’s 40-hour threshold.

Recent decisions are beginning to make clear that some of these complaints are subject to dismissal for failure to allege enough specific facts to state a claim under the FLSA. On Aug. 26, the U.S. Court of Appeals for the Third Circuit decided in Davis v. Abington Memorial Hospital, 765 F.3d 236 (3d Cir. 2014), that the FLSA claims of plaintiffs who alleged that they “typically” worked between 32 and 40 hours per week and that they “frequently” worked extra time during meal breaks or after their shifts ended were properly dismissed for failing to allege enough facts in their complaints. The court adopted an approach taken last year by the Second Circuit in Lundy v. Catholic Health System of Long Island, 711 F.3d 106 (2013), on how much factual specificity is required to survive a motion to dismiss in an FLSA case.

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