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Employee’s own allegations doom minimum wage claim

Virginia Lawyers Weekly//September 25, 2023

Employee’s own allegations doom minimum wage claim

Virginia Lawyers Weekly//September 25, 2023//

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Where a former employee failed to allege facts plausibly suggesting that his employer failed to provide compensation beneath the statutory minimum wage over the course of any workweek, his minimum wage claim was dismissed.


Addison Davila filed an amended complaint on April 26, 2023, alleging that SJ Perry LLC failed to pay its hourly employees minimum wages and overtime compensation in violation of the Fair Labor Standards Act, or FLSA, and retaliated against Davila, in violation of the FLSA’s anti-retaliation provision, in response to his filing of a lawful claim. SJ Perry seeks dismissal of Davila’s minimum wage claim.


Davila alleges that “[b]y requiring Mr. Davila to work hours for which he was not compensated at all, Defendant failed to pay Mr. Davila the required minimum wage.” However, there is no FLSA violation where each employee received during the workweek “compensation equal to or exceeding the product of the total number of hours worked and the statutory minimum hourly rate.”

In Virginia, the FLSA requires that employees receive the greater of the federal or Virginia minimum wage. Because the Virginia minimum wage, $11.00 and $12.00 per hour in 2022 and 2023, respectively, is greater than the federal minimum wage of $7.25 per hour, this would mean that no FLSA violation took place so long as the average rate of pay was at least $11.00 per hour in 2022, and $12.00 per hour in 2023.

Davita’s amended complaint asserts that he has been employed at a rate of $15.50 per hour since Sept. 13, 2022. Davila offers one pay period, October 30 to Nov. 12, 2022, as an example. During that pay period, he was paid for 94.87 hours, 14.87 of which were overtime. He estimates that he worked an additional 3.33 hours counting, allocating and sorting cash in the register at the end of each shift, for which he was not compensated. Using this pay period provided by Davila, the average hourly rate, even after including the alleged 3.33 uncompensated hours, is still well above the statutory minimum in Virginia, regardless of whether the minimum is $11.00 or $12.00 per hour.

Davila implies that the pay period beginning on Oct. 30, 2022, and ending on Nov. 12, 2022, is representative of the entire time that he has been employed by SJ Perry. Even when the Virginia minimum wage increased to $12.00 per hour at the start of 2023, Davila’s approximate hourly average wage of $14.97 would still be well above the required minimum. Therefore, Davila has failed to allege that SJ Perry provided compensation beneath the statutory minimum wage over the course of any workweek, and there can be no violation of the FLSA on minimum wage grounds.

Davila argues that in Conner v. Cleveland County, North Carolina, 22 F.4th 412 (4th Cir. 2022), the Fourth Circuit has laid out a different standard to determine whether sufficient factual allegations have been pied to overcome a 12(b)(6) motion to dismiss an FLSA claim. Critically, however, the two-prong test articulated in Conner only applies to “whether a plaintiff has pied sufficient factual allegations of an FLSA overtime gap time violation to overcome a Rule 12(b)(6) motion to dismiss.”

Although Davila has adequately alleged that he has not been paid all regular time compensation pursuant to his employment agreement, which is sufficient to raise an inference of an overtime gap time violation, he has not alleged that his compensation during any workweek was less than the statutory minimum, which is required to bring a FLSA claim for minimum wages.

Defendant’s partial motion to dismiss granted.

Davila v. SJ Perry LLC, Case No. 4:23-cv-33, Sept. 6, 2023. EDVA at Newport News (Krask). VLW 023-3-547. 8 pp.

VLW 023-3-547

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