Last week, the Sixth Circuit affirmed the dismissal of a complaint for failing to allege sufficiently detailed facts to state a claim under the FLSA. Forrester v. American Protection and Security Service, LLC, No. 21-5870 (6th Cir. 5-13-22). In it, the plaintiff complained about not being paid when the employer required employees to show up 10-15 minutes prior to their shift and stay as late as 10-15 minutes after their shift in order to ensure unbroken coverage. However, the plaintiff failed to plead what, if any work, she did during this period of time so that the court could determine whether the 15 minutes before and after her shift were compensable under the FLSA. The allegations in the complaint stated legal conclusions, to which the defendant employer was not required to admit or deny. Despite having ample opportunity to do so, the plaintiff never formally attempted to amend her complaint or to submit a proposed amended complaint for the trial court to consider whether the deficiencies had been corrected. Therefore, the trial court was within its discretion to dismiss the complaint without giving the plaintiff the opportunity to try again.
According to the Court’s opinion, the 10-15 minutes before
and after each employee’s shift was to ensure an overlap and adequate coverage
during the shift hand-offs. The employer
apparently did not keep records of this time or pay employees for this
time. However, the employer had
disciplined employees who failed to report early for their shift. The plaintiff brought a class action to
challenge this practice and recover unpaid overtime and attorney’s fees.
The court observed that employers are not required to pay
for every minute that an employee is at work.
The Supreme Court had previously held that the Portal-to-Portal Act does
not require employers to pay for or record time an employee spends commuting to
and from work or for time going through an employer’s security checkpoint after work. The security checkpoint was not an integral
part of the employees’ principal activity which the employees were employed to
perform. However, in this case, the
plaintiff never pleaded any facts from which the court could determine whether any
work was actually performed during the 10-15 minutes before and after her
shift. At best, she alleged that there
were “shift-change duties,” but did not elaborate what those entailed. The court was left to guess whether those “shift-change
duties” could be eliminated without impairing the plaintiff’s ability to
work. If so, the “shift-change duties”
would not be compensable.
Despite being on notice that her complaint may be factually deficient, the plaintiff never formally requested to amend her complaint or to submit an amended complaint which would have provided detailed allegations. Accordingly, the trial court was within its discretion to dismiss the complaint without giving the plaintiff leave to amend her complaint and try again.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
