United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
LEON HOLMES UNITED STATES DISTRICT JUDGE.
Aubrey brings this action against her former employers,
Zamam, LLC, and Syed Hussain, for violations of the Fair
Labor Standards Act, 29 U.S.C. § 201, et seq.,
and the Arkansas Minimum Wage Act, Ark. Code Ann. §
11-4-201, et. seq. Aubrey alleges that she was
required to work more than forty hours per week but was not
paid a higher rate for those overtime hours. The defendants
have filed a motion to dismiss pursuant to Federal Rules of
Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7). For the
following reasons, the motion is denied.
first amended and substituted complaint alleges the following
facts. Document #14. The defendants operate a gas station
retail business in Pope County, Arkansas. Zamam is a limited
liability company registered to conduct business in Arkansas.
Hussain, Zamam's registered agent, controlled day-to-day
operations. Zamam had at least four employees at all times,
at least two of whom were engaged in interstate commerce.
Aubrey worked as a retail clerk at the gas station. Aubrey
was likewise employed by the defendants' predecessor. The
defendants took ownership of the gas station from the
predecessor on or about June 12, 2016. Aubrey's
compensation was not less than $455 per week nor more than
$100, 000 per year. Her primary duties were to process
consumer transactions, stock shelves, and clean the store.
These duties did not require knowledge gained from any
professional education. Aubrey did not manage the business,
supervise other employees, or train other employees. She was
not involved in the hiring or firing of other employees.
defendants knew that Aubrey “always or almost
always” worked in excess of forty hours per week
because they required her to do so, but they did not pay her
a higher rate for the excess hours. Around February or March
of 2017, the defendants presented Aubrey's son with a
receipt for payment of back wages, liquidated damages,
employment benefits, or other compensation from the United
States Department of Labor Wage and Hour Division. The
defendants told Aubrey's son that he had to sign the
receipt and receive the accompanying check on Aubrey's
behalf. Aubrey's son signed the receipt and received a
check made out to Aubrey in the amount of $247.39.
Aubrey's son gave the check to Aubrey and repeated to her
the defendants' statements.
the defendants argue that this action must be dismissed
pursuant to Rule 12(b)(1), which provides for dismissal based
on a lack of subject-matter jurisdiction, because
Aubrey's claims are mooted by a prior settlement. The
defendants say that Aubrey voluntarily entered into a
settlement of her claims under the FLSA in exchange for
monetary payment, the amount of which was determined by the
Department of Labor. Because Aubrey accepted the money and
signed the Department of Labor receipt, which included a
waiver of the right to bring suit, the defendants argue that
her claims are moot and this Court lacks subject-matter
jurisdiction. The FLSA provides in pertinent part that an
employee who agrees to accept a payment for overtime
compensation supervised by the Department of Labor waives her
right, upon payment in full, to bring a private cause of
action in court. 29 U.S.C. § 216(c)
when an employer has grounds to believe that an employee
executed a valid waiver, it should raise the waiver defense
through a Rule 12(b)(6) motion or a Rule 56 motion, rather
than a Rule 12(b)(1) motion. See Flores v. ACT Event
Servs., No. 3:14-CV-2412-G, 2015 WL 567960 (N.D. Tex.
Feb. 11, 2015). Such a waiver “is a contract-based
affirmative defense, and an affirmative defense does not
strip a court of its subject-matter jurisdiction.”
Downing v. Riceland Foods, Inc., 298 F.R.D. 587, 590
(E.D. Mo. 2014). The defendants' assertion that
Aubrey's FLSA claims are barred under section 216(c)
challenges the validity of the FLSA claims, rather than the
court's jurisdiction over the subject matter. See
Arbaugh v. Y & H Corp., 546 U.S. 500, 511, 126 S.Ct.
1235, 163 L.Ed.2d 1097 (2006) (“[W]hen Congress does
not rank a statutory limitation on coverage as
jurisdictional, courts should treat the restriction as
nonjurisdictional in character.”); see also Min Fu
v. Hunan of Morris Food Inc., Civ. No. 12-0587 (KM),
2013 WL 5970167, at *4 (D.N.J. Nov. 6, 2013) (applying the
rule in Arbaugh to 29 U.S.C. § 216(c)).
Therefore, there is no basis for dismissal under Rule
the defendants argue that the first amended and substituted
complaint does not state a claim under the FLSA or the
Arkansas Minimum Wage Act. They argue that a complaint must
do more than allege that an employer failed to pay overtime.
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Although detailed
factual allegations are not required, the complaint must set
forth “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173
L.Ed.2d 868 (2009). The Court accepts as true all of the
factual allegations contained in the complaint and draws all
reasonable inferences in favor of the nonmoving party.
Gorog v. Best Buy Co., Inc., 760 F.3d 787, 792 (8th
Cir. 2014). The complaint must contain more than labels,
conclusions, or a formulaic recitation of the elements of a
cause of action, which means that the court is “not
bound to accept as true a legal conclusion couched as a
factual allegation.” Twombly, 550 U.S. at 555,
127 S.Ct. at 1965.
FLSA requires employers to pay non-exempt employees at
overtime rates for time worked in excess of forty hours per
week. 29 U.S.C. § 207(a). The Eighth Circuit has not
addressed the level of detail required to plead a substantive
cause of action for overtime violations under the FLSA, but
it has recognized that other circuits have arrived at
“somewhat variable conclusions.” See Ash v.
Anderson Merch., LLC, 799 F.3d 957, 962 (8th Cir. 2015);
Hall v. DIRECTV, LLC, 846 F.3d 757, 777 (4th Cir.
2017); cf. Davis v. Abington Mem. Hosp., 765 F.3d
236, 242-43 (3d Cir. 2014); Landers v. Quality
Commc'n, Inc., 771 F.3d 638, 644-45 (9th Cir. 2014);
DeJesus v. HF Mgmt. Servs., 726 F.3d 85, 88 (2d Cir.
2013); Pruell v. Caritas Christi, 678 F.3d 10, 13-15
(1st Cir. 2012); Sec'y of Labor v. Labbe, 319
Fed.Appx. 761, 763-64 (11th Cir. 2008).
alleges that the defendants qualify as employers under the
FLSA; she alleges that she was employed by the defendants;
she alleges that her job duties involved interstate activity;
she describes her job duties; she alleges that she was not
paid more than $455 a week nor more than $100, 000 a year;
she alleges that she worked in excess of forty hours per week
“always or almost always”; she alleges that the
defendants knew she was working overtime because they were
the ones requiring her to do so; and she alleges the
defendants did not pay her at an overtime rate to compensate
her for the excess hours. These factual allegations are
enough to overcome a motion to dismiss claims under the FLSA.
See Drake v. Steak N Shake Operations, Inc., No.
4:14-CV-1535-JAR, 2015 WL 4425979 at *2 (E.D. Mo. July 17,
2015); Williams v. Cent. Transport Intern., Inc.,
No. 4:13-CV-2009 (CEJ), 2014 WL 1344513 at *3 (E.D. Mo. Apr.
4, 2014). Because the FLSA and Arkansas Minimum Wage Act
impose similar overtime requirements, and claims brought
under parallel provisions of the acts should be interpreted
similarly, the complaint adequately alleges a claim under the
Arkansas act as well. See Carter v. Primary Home Care of
Hot Springs, Inc., 2015 WL 11120564 at *1 (W.D. Ark. May
14, 2015); Ark. Code Ann. § 11-4-218(f).
addition, the defendants argue that Aubrey's AMWA claim
must be dismissed pursuant to Rule 12(b)(6) because it is
duplicative of her FLSA claim and therefore preempted.
Document #17 at 7-8. The Eighth Circuit has not addressed
whether the FLSA provides an exclusive remedy for violations
of its provisions. See Montize v. Pittman Props. Ltd.
P'ship, 719 F.Supp.2d 1052, 1055-56 (W.D. Ark.
2010). “[T]he FLSA does not generally preempt state law
claims in a given case.” Bouaphakeo v. Tyson Foods,
Inc., 564 F.Supp.2d 870, 886 (N.D. Iowa 2008). Its
savings clause specifically permits states to provide
employees greater protections. 29 U.S.C. § 218(a). The
AMWA provides no greater overtime protections than the FLSA;
rather, the overtime protections it affords are equal to
those afforded under the FLSA. See Helmert v. Butterball,
LLC, 805 F.Supp.2d 655, 663 n.8 (E.D. Ark. 2011).
Fourth Circuit and district courts outside this circuit have
held that the FLSA preempts state law claims when they are
merely duplicative of FLSA claims. See Anderson v. Sara
Lee Corp., 508 F.3d 181, 193 (4th Cir. 2007) (collecting
cases). Nevertheless, the State of Arkansas, mindful of the
FLSA's status, has provided an additional remedy. Without
a clear indication from Congress of its intent to preempt
state law, this Court will follow the other district courts
in this circuit holding that the FLSA does not provide an
exclusive remedy for violations of its provisions. See
Montize, 719 F.Supp.2d at 1056 (holding that state law
may offer an alternative legal basis for equal or more
generous relief for the same alleged wrongs); Cortez v.
Nebraska Beef, Inc., 266 F.R.D. 275, 282-84 (D. Neb.
2010) (holding that FLSA did not preempt claim under Nebraska
wage and hour laws); Robertson v. LTS Mgmt. Servs.
LLC, 642 F.Supp.2d 922, 927-28 (W.D. Mo. 2008) ...