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Brown v. Apothaker & Associates, P.C.

United States District Court, D. New Jersey

April 3, 2018

JASON BROWN, Plaintiff,

          DANIEL ARI HOROWITZ SWARTZ SWIDLER, LLC On behalf of Plaintiff.



          NOEL L. HILLMAN, U.S.D.J.

         Presently 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.[1] For the reasons expressed below, Defendants' motion will be denied.


         Plaintiff, 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 seq.[2] (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.

         Defendants 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[3] - that Plaintiff's claim that he was a non-exempt employee is false, and is otherwise not properly pleaded.

         The Court finds that Plaintiff's complaint satisfies the requisite pleading standards to proceed past Defendants' motion to dismiss.[4]

         The 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 quotations omitted).

         As to 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 excess hours)).

Id. at 241-42.

         In 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 ...

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