Employment: Virginia Overtime Wage Act class action may proceed

Where a company argued that the Virginia Overtime Wage Act did not allow class actions in federal court, this argument was rejected. The court followed Glennon v. Anheuser-Busch, Inc., 2022 WL 18937383 (E.D. Va. Sept. 22, 2022), which held that permitting class actions did not violate the Rules Enabling Act.

Background

Anne Fierbaugh filed a putative class action suit against her former employer, Capital One Services LLC, asserting claims for violations of Fair Labor Standards Act, or FLSA, and overtime provisions violations of the Virginia Overtime Wage Act, or VOWA. Capital One has filed a motion to dismiss.

VOWA

Capital One’s principal contention is that the VOWA does not permit plaintiff to bring a class action – where individuals must op-out – but, instead, the VOWA only permits plaintiff to bring a collective action, where individuals must opt-in.

In Glennon v. Anheuser-Busch, Inc., 2022 WL 18937383 (E.D. Va. Sept. 22, 2022), the court held that permitting class actions did not violate the Rules Enabling Act. Since Glennon, federal courts in Virginia have continued to allow plaintiffs to bring VOWA claims as Rule 23 class actions.

Although some courts outside this district have concluded that Rule 23 class actions are impermissible under circumstances like those here, those courts were applying different statutes from different states. The court does not find persuasive reasons to depart from this district’s practice of permitting such claims under Virginia’s opt-in statute.

Instead, the court finds, as other federal courts in Virginia have, that the collective action opt-in procedure is not “so intertwined” with the rights and remedies of the VOWA that “it functions to define the scope of the state-created right.” Accordingly, the court finds that applying Rule 23 to VOWA claims does not “abridge, enlarge, or modify any substantive right.”

Class allegations

Capital One argues that plaintiff’s claims should be stricken “because she has not plausibly alleged that the putative class of Learning Associates satisfies Rule 23’s commonality, predominance, and manageability requirements, and her class definition is also improperly fail-safe.” Capital One asserts that the job duties plaintiff alleges in the amended complaint are so vague that they could apply to just about anyone in Capital One’s offices. On the same grounds, Capital One contends that the Learning Associates are not sufficiently “similarly situated” to support an FLSA collective action.

Capital One’s attacks relate to certification and that they are premature at this stage. The facts pleaded by plaintiff present the possibility that she can satisfy Rule 23’s certification requirements and therefore, the court declines to dismiss or strike her claims at this early stage in the case. Likewise, Capital One has provided insufficient support for its argument that plaintiff’s FLSA collective action should be stricken.

Individual claims

Capital One contends that although plaintiff alleges she worked 50 hours per week, she does not specify whether those hours were in the office or were spent via remote work. They argue that plaintiff does not allege why Capital One expected her to work more than 40 hours per week.

Although this is a close case, plaintiff pleads just enough to meet the Fourth Circuit’s test on the facts presented here. Plaintiff alleges specifics about the number of hours of her typical work week and gives examples of her exact work hours and provided the type of work she would typically do during overtime hours (preparing PowerPoint slide decks). In so doing, she alleges detailed facts.

Statute of limitations

At the pleading stage, some factual indication must exist that the FLSA violation at issue was willful. Plaintiff has satisfied that requirement here.

Capital One is a longstanding, sophisticated entity employing a large number of people and is familiar with FLSA’s requirements. Capital One had total control over the work requirements of the Learning Associates as they were full-time employees, Capital One set their duty requirements and Capital One engaged in regular’ “cross-calibrations” to ensure the Learning Associates were meeting its requirements.

Under these circumstances, the court can infer that, because Capital One had sufficient knowledge and control over the Learning Associates over a time period of more than several years, to the extent that Capital One has violated the FLSA in setting and managing plaintiff’s work environment, the Amended Complaint here provides enough facts to support plaintiff’s claim that such violation was willful.

Defendant’s motion to dismiss denied.

Fierbaugh v. Capital One Services LLC, Case No. 3:34-cv-901, Sept. 10, 2025. EDVA at Richmond (Hudson). VLW 025-3-369. 12 pp.