United States District Court, D. New Jersey
ARI HOROWITZ SWARTZ SWIDLER, LLC On behalf of Plaintiff.
STEPHANIE JAN MENSING SCHOENBERG LAW OFFICE On behalf of
L. HILLMAN, U.S.D.J.
before the Court is the motion of Defendants to dismiss
Plaintiff's claims that Defendants violated the federal
Fair Labor Standards Act and New Jersey's Wage and Hour
Law by not properly compensating him for the time he worked
in excess of 40 hours a week. For the reasons expressed below,
Defendants' motion will be denied.
Jason Brown, worked for Defendants, Apothaker &
Associates, P.C., which does business as Apothaker Scian,
P.C., and is owned by David Apothaker and Kimberly Scian, as
a compliance officer from October 2014 until December 2,
2016. Plaintiff claims he was paid a salary of $1, 211.54 per
week and even though he was scheduled for 40 hours a week, he
typically worked 50 hours per week. Plaintiff claims that
Defendants did not compensate him "for hours worked in
excess of forty (40) in a workweek, " which is a
violation of the Fair Labor Standards Act ("FLSA"),
29 U.S.C. § 201, et seq., and New Jersey's Wage and
Hour Law ("NJWHL"), N.J.S.A. 34:11-56 et
(Amend. Compl. at 31, Docket no. 10 at 5.) Plaintiff further
claims that he was an employee who was not exempt from the
overtime wage requirements of the FLSA and NJWHL.
have moved to dismiss Plaintiff's complaint because it
does not properly allege that during the relevant time period
- October 2014 through December 2, 2016 - he actually worked
forty hours and additional hours during a workweek for which
he was not compensated. Defendants also argue - in a
footnote - that Plaintiff's claim that he was a
non-exempt employee is false, and is otherwise not properly
Court finds that Plaintiff's complaint satisfies the
requisite pleading standards to proceed past Defendants'
motion to dismiss.
Third Circuit has explained that the "'FLSA
establishes federal minimum-wage, maximum-hour, and overtime
guarantees that cannot be modified by contract.'"
Davis v. Abington Memorial Hosp., 765 F.3d 236, 241
(3d Cir. 2014) (quoting Genesis Healthcare Corp. v.
Symczyk, 133 S.Ct. 1523, 1527 (2013)). Under the FLSA,
an employer must pay its employees at least a specified
minimum hourly wage for work performed, and the employer must
pay one and one-half times the employer's regular wage
for hours worked in excess of forty hours per week.
Id. (citing 29 U.S.C. §§ 206, 207).
Employers who violate these provisions are "liable to
the employee or employees affected in the amount of their
unpaid minimum wages, or their unpaid overtime compensation,
as the case may be, and in an additional equal amount as
liquidated damages." Id. (quoting §
216(b)). Thus, to recover overtime compensation under the
FLSA, "an employee must prove that he worked overtime
hours without compensation, and he must show the amount and
extent of his overtime work as a matter of just and
reasonable inference." Id. (citations and
the "level of detail necessary to plead a FLSA"
overtime claim, the Third Circuit has instructed:
We agree with the middle-ground approach taken by the Court
of Appeals for the Second Circuit in Lundy v. Catholic
Health System of Long Island Inc., 711 F.3d 106 (2d Cir.
2013). In Lundy, the court held that "in order
to state a plausible FLSA overtime claim, a plaintiff must
sufficiently allege [forty] hours of work in a given
workweek as well as some uncompensated time in
excess of the [forty] hours." Id. at 114
(emphases added) (citing 29 U.S.C. § 207(a) (1)
(requiring that, "for a workweek longer than forty
hours, " an employee who works "in excess of"
forty hours shall be compensated time and a half for the
Id. at 241-42.
Davis, the Third Circuit applied the Lundy
approach to the case before it, and concluded that the
plaintiffs' allegations were insufficient because
"[n]one of the named plaintiffs has alleged a single
workweek in which he or she worked at least forty hours and
also worked uncompensated time in excess of forty
hours." Id. at 242 (explaining that "[o]f
the four named plaintiffs who allege that they
'typically' worked at least forty hours per week, in
addition to extra hours 'frequently' worked during
meal breaks or outside of their scheduled shifts . . . none
indicates that she in fact worked extra hours during a
typical (that is, a forty-hour) week"). The Third
Circuit further observed, however:
In reaching this conclusion, we do not hold that a plaintiff
must identify the exact dates and times that she worked
overtime. For instance, a plaintiff's claim that she
"typically" worked forty hours per week, worked
extra hours during such a forty-hour week, and was not
compensated for extra hours beyond forty hours he or she