Following the Second Circuit’s clarification that an FLSA plaintiff must provide “sufficiently developed factual allegations” regarding hours worked (DeJesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89-90 (2d Cir. 2013)), District Courts both within and outside the Circuit have sought to apply that standard to Fair Labor Standards Act complaints.  In one of the most recent such decisions, Senior Judge Leonard Wexler of the Eastern District of New York dismissed, with leave to replead, allegations that healthcare industry couriers were misclassified as independent contractors and regularly worked overtime without premium pay in violation of the FLSA.  Gisomme v. Healthex Corp., 2014 U.S. Dist. LEXIS 67588 (E.D.N.Y. May 15, 2014).

In Gisomme, plaintiffs alleged they were employees because, inter alia, they were economically dependent on defendant’s business and were required to adhere to defendant’s scheduling directives.  They further alleged, conclusorily, that they worked “an average” of 50 hours or more providing delivery services.  Judge Wexler rejected the latter allegations as lacking “sufficient detail about the length and frequency of their unpaid work to support a reasonable inference that they worked more than forty hours in a given week,” and the former as “not sufficient to establish that [Defendant] exercised ‘formal control’ or ‘functional control’ over plaintiffs [sufficient to support a finding of employee status].

Gisomme is a reminder to FLSA litigants that the first step of defending a filed litigation is to properly analyze the sufficiency of plaintiffs’ allegations under the FLSA and applicable state law.