Gould et al v. First Student Management, LLC et al

Filing 18

///ORDER granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Darryl Gould, et al.
v.

Civil No. 16-cv-359-PB
Opinion No. 2017 DNH 161

First Student Management, LLC, et al.

MEMORANDUM AND ORDER
A group of bus drivers and driver assistants has filed a
class action alleging that their employer, First Student
Management, LLC (“First Student”), failed to pay wages due under
the Fair Labor Standards Act (“FLSA”) and New Hampshire’s wage
and hour laws.

First Student has challenged the complaint in a

motion to dismiss for failure to state a claim.

I.

BACKGROUND

First Student provides busing services to schools in New
Hampshire.

For several years, First Student has employed the

plaintiffs as bus drivers and driver assistants.

Their

employment agreement entitles them to compensation “for all time
spent in the service of” First Student, including an overtime
premium of one-and-a-half times their regular rate for all hours
worked over forty in a week.

Doc. No. 1 at 6, 17, 25–26.

To track and calculate the compensation due, First Student
uses a computer program.

See id. at 18–22.

Upon contracting

with a school district, First Student estimates the time
required to drive each route.

Id. at 18.

Estimated route times

are then inputted into a computer, which assigns each driver a
daily schedule and projects the amount of time the driver will
work in a given week.

Id. at 19.

The drivers base their complaint on three of First
Student’s payment practices.

First, the drivers claim that they

are not compensated for preliminary and “postliminary”
activities that they must perform before and after driving.
id. at 19–20.

See

Before commencing a bus route, the drivers must

appear at First Student’s bus yard at a designated time, wait in
line to receive their assignments and keys, proceed to the
buses, and log in to an equipment inspection system.
activities take approximately six minutes each day.

Id.

These

Id.

Although the preliminary activities are an essential feature of
the drivers’ duties, they are not recorded or compensated.
at 19.

Id.

Similarly, once the drivers complete a bus route, they

must return to the bus yard and again log in to the inspection
system.

Id. at 20.

At that moment, their credited working time

ends, yet they are still required to conduct postliminary
activities, including inspecting and cleaning the buses,
2

returning equipment, and reporting issues to the First Student
office.

Id.

These uncompensated activities take another six

minutes each day.

Id.

The drivers next claim that First Student substantially
undercompensates its employees by refusing to pay for time spent
on trips that exceed preset limits.

Id. at 20–21.

Immediately

before and after driving a bus route, a driver must log into a
system that tracks the time elapsed while driving.

Id.

If the

time elapsed falls within a preset tolerance range, the driver
is paid for the estimated time that First Student established
for that particular route.

Id.

at 21.

If the actual elapsed

time exceeds the tolerance range, the system generates an
exception report.

Id.

Exception reports are routinely ignored,

with drivers receiving compensation only for the preassigned
estimate, not the amount of time they actually spent driving.
Id.
The third way in which First Student allegedly
undercompensates its employees is by miscounting the hours they
work on charter routes.

Id. at 22.

To evade its obligation to

pay overtime for hours worked above the forty-hour threshold,
First Student sometimes improperly shifts time an employee
devotes to a charter route from one pay period into a later pay
period.

Id.

First Student also separates employees’ driving
3

time into “Charter” and “Regular” categories, and refuses to pay
any overtime unless the employee works more than 40 hours in a
week within one or both categories.

As a result, an employee

may fail to receive overtime for a given week even if she works
more than forty weekly hours when the time across both
categories is combined.

Id. at 23.

Compounding this problem,

First Student does not compensate employees for “dead time”
between regular routes and charter routes.

Id. at 22.

The drivers assert that First Student uses these payment
practices to avoid its duty to pay both overtime and regular
hourly wages, known as “straight time.”

II.

STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a
claim, plaintiffs must make factual allegations sufficient to
“state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim

is facially plausible if it pleads “factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

Id.

In deciding a motion to dismiss, I employ a two-step
approach.

See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1,

4

12 (1st Cir. 2011).

First, I screen the complaint for

statements that “merely offer legal conclusions couched as fact
or threadbare recitals of the elements of a cause of action.”
Id. (citation, internal quotation marks, and alterations
omitted).

A claim consisting of little more than “allegations

that merely parrot the elements of the cause of action” may be
dismissed.

Id.

Second, I credit as true all non-conclusory

factual allegations and the reasonable inferences drawn from
those allegations, and then determine if the claim is plausible.
Id.

The plausibility requirement “simply calls for enough fact

to raise a reasonable expectation that discovery will reveal
evidence” of illegal conduct.

Twombly, 550 U.S. at 556.

The

“make-or-break standard” is that those allegations and
inferences, “taken as true, must state a plausible, not a merely
conceivable, case for relief.”

Sepúlveda–Villarini v. Dep’t of

Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at
555 (“Factual allegations must be enough to raise a right to
relief above the speculative level . . . .”).

III.

ANALYSIS

The drivers seek damages for straight time and overtime
that First Student failed to pay them in violation of both New

5

Hampshire’s wage and hour laws and the FLSA.

I address First

Student’s challenges to each type of claim in turn.1
A.

Straight-Time Claims
1.

State Law Straight-Time Claim

New Hampshire law requires employers to pay “all wages
due.”

N.H. Rev. Stat. Ann. (“RSA”) § 275:43, I (2016) (since

amended); see Gruda v. Fred H. Hamblet, Inc., No. 11-CV-053-JD,
2011 WL 1792715, at *1 (D.N.H. May 11, 2011) (“Although the
statute refers to the timing and means of paying wages, it is
used to claim unpaid wages from employers.”).

The drivers

argue, straightforwardly, that First Student violated the
statute by failing to pay them wages they are due for all time
worked.

They allege in detail the mechanisms by which First

Student underpaid them, including time they spent driving
students and performing required ancillary activities for which
they were not compensated.

The plaintiffs claim that they

bargained for particular rates and hours, and their express
employment agreement provides that they “shall be paid for all
time spent in the service of” First Student.

See Doc. No. 1–4

at 25.

Plaintiffs have sued both First Student and a related entity,
First Student, Inc. Plaintiffs have agreed, however, to abandon
their claim against First Student, Inc. (Doc. No. 17).
Accordingly, I need not consider plaintiffs’ argument that First
Student, Inc. can be held liable as a joint employer.
1

6

First Student nevertheless argues that the drivers’
straight-time claims fail because the drivers do not
sufficiently allege that they had a contract with First Student
that obligated the company to pay the omitted wages.
argument is a nonstarter.

This

The drivers allege that they

bargained with First Student to receive certain rates “for all
time in [its] service,” and they adequately allege that through
a variety of mechanisms First Student failed to pay them wages
due under that arrangement.

Cf. Manning v. Boston Med. Ctr.

Corp., 725 F.3d 34, 57–58 (1st Cir. 2013) (holding contract pled
adequately under Massachusetts law).

That is all that is

required to survive a motion to dismiss.
2.

FLSA Straight-Time Claim

The drivers also bring a claim for straight-time wages
under the FLSA, seeking compensation at a regular rate of pay
for hours worked under forty in a week.

The legal theory on

which their claim is based is that the FLSA’s overtime provision
provides a cause of action and remedy for uncompensated straight
time during weeks in which they also worked overtime.
U.S.C. § 207(a).

Cf. 29

I agree with First Student that this claim is

not cognizable under the FLSA.
The FLSA’s overtime provision requires employers to pay
their employees a premium rate for each overtime hour.
7

Id.

(“[N]o employer shall employ any of his employees . . . for a
workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above
specified at a rate not less than one and one-half times the
regular rate at which he is employed.”); see Perez v. Mortg.
Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015) (construing overtime
provision).

“Overtime is defined as any employment in excess of

40 hours in a single workweek.”

Reich v. Newspapers of New

England, Inc., 44 F.3d 1060, 1070 (1st Cir. 1995).
The claim asserted by the plaintiffs is not, strictly
speaking, for unpaid overtime hours.

Instead, they seek to

recover a regular rate of pay for uncompensated hours worked
under forty.

But the plaintiffs limit the scope of their claim

to only those weeks during which they also worked overtime.

The

plaintiffs thus distinguish this “overtime gap time” claim from
a “pure gap time” claim seeking unpaid straight-time during
weeks in which they did not also work overtime.
I conclude that the plaintiffs’ overtime gap time claim is
not cognizable under the FLSA.

The plain language of the

overtime provision provides an employee a cause of action only
for “compensation for his employment in excess of [forty]
hours.”

See 29 U.S.C. § 207(a).

The plaintiffs do not engage

with the plain language of the provision, and courts regularly
8

and persuasively hold that it does not support an overtime gap
time claim.

See, e.g., Lundy v. Catholic Health Sys. of Long

Island Inc., 711 F.3d 106, 116 (2d Cir. 2013) (“[T]he text of
FLSA requires only payment of minimum wages and overtime wages.
It simply does not consider or afford a recovery for gap-time
hours . . . even if the employee also works overtime hours the
same week.”) (citation omitted); Banks v. First Student Mgmt.
LLC, No. CV 16-4316, 2017 WL 616433, at *402 (E.D. La. Feb. 15,
2017) (noting agreement among district courts within Fifth
Circuit); Murphy v. First Student Mgmt. LLC, No. 1:16-CV-01966DAP, 2017 WL 346977, at *4 (N.D. Ohio Jan. 24, 2017) (same
within Sixth Circuit); Sargent v. HG Staffing, LLC, 171 F. Supp.
3d 1063, 1078–1079 (D. Nev. 2016) (same within Ninth Circuit);
cf. Davis v. Abington Mem’l Hosp., 765 F.3d 236, 244 (3d Cir.
2014) (“[W]e agree with the clear weight of authority and hold
that pure gap time claims . . . are not cognizable under the
FLSA, which requires payment of minimum wages and overtime wages
only.”).
In concluding that the overtime gap time claim is not
cognizable under the FLSA, I join six other courts that have
rejected this theory in cases brought by the plaintiffs’ counsel
against First Student.

See Spencer v. First Student Mgmt. LLC,

No. 15 C 9069, 2016 WL 693252, at *1–2 (N.D. Ill. Feb. 22,
9

2016); Hensley v. First Student Mgmt. LLC, No. CV 15-3811, 2016
WL 1259968, at *3–4 (D.N.J. Mar. 31, 2016), motion to certify
appeal denied, No. CV 15-3811, 2016 WL 7130908 (D.N.J. Dec. 7,
2016) (concluding that “there is not a substantial ground for
difference of opinion sufficient to justify interlocutory
review”); Rosario v. First Student Mgmt. LLC, No. CV 15-6478,
2016 WL 4367019, at *3–6 (E.D. Pa. Aug. 16, 2016); Terrell v.
First Student Mgmt. LLC, No. 4:16-CV-481 SNLJ, 2016 WL 6679847,
at *3 (E.D. Mo. Nov. 14, 2016); Murphy, 2017 WL 346977, at *3–4;
Banks, 2017 WL 616433, at *404.
Against the plain language of the statute and accumulating
adverse case law, the plaintiffs argue that I should follow the
Fourth Circuit in recognizing overtime gap time claims under the
FLSA.

In Monahan, the Fourth Circuit held that the FLSA does

not allow claims for pure gap time, but may allow claims for
overtime gap time in limited circumstances.

See Monahan v. Cty.

of Chesterfield, Va., 95 F.3d 1263, 1280–1284 (4th Cir. 1996);
see also Koelker v. Mayor & City Council of Cumberland, 599 F.
Supp. 2d 624, 635 (D. Md. 2009) (construing Monahan as binding
precedent recognizing overtime gap time claims).2
Monahan may be materially distinguishable from the case before
me. The court examined employment agreements of police officers
who “are paid a salary pursuant to a partial exemption to the
FLSA . . . [and] work a 24-day cycle which has an accompanying
[FLSA] overtime threshold of 147 hours,” but worked more than
2

10

In reaching this conclusion, the Fourth Circuit relied on
interpretive bulletins issued by the Department of Labor.

See

29 C.F.R. §§ 778.315; 778.317; 778.322.3 But unlike regulations,
these bulletins do not have the force of law.

See Lundy, 711

F.3d at 116; Reich, 44 F.3d at 1070; compare 29 C.F.R. § 553.2
(describing purpose of part 533) with § 778.1 (describing
purpose of part 778).

Accordingly, they are “entitled to

respect . . . only to the extent that the agency’s
interpretation has the ‘power to persuade.’”

Flores v. City of

San Gabriel, 824 F.3d 890, 898 (9th Cir. 2016) (quoting
Christensen v. Harris Cty., 529 U.S. 576, 587 (2000)); see

the 135- and 144-hour periods for which they were scheduled.
See 95 F.3d at 1265–66. Here, however, the plaintiffs do not
work a comparable schedule, are not salaried, and do not receive
a partial exemption under the FLSA. Cf. Rosario v. First
Student Mgmt. LLC, No. CV 15-6478, 2016 WL 4367019, at *4 (E.D.
Pa. Aug. 16, 2016) (noting that Monahan acknowledged viability
of overtime gap time claim in “limited circumstances”).
For example, 29 C.F.R. § 778.315 states, “In determining the
number of hours for which overtime compensation is due, all
hours worked (see § 778.223) by an employee for an employer in a
particular workweek must be counted. Overtime compensation, at
a rate not less than one and one-half times the regular rate of
pay, must be paid for each hour worked in the workweek in excess
of the applicable maximum hours standard. This extra
compensation for the excess hours of overtime work under the Act
cannot be said to have been paid to an employee unless all the
straight time compensation due him for the nonovertime hours
under his contract (express or implied) or under any applicable
statute has been paid.”
3

11

Reich, 44 F.3d at 1068, 1070–72 & nn.5, 7, 8; Skidmore v. Swift
& Co., 323 U.S. 134, 138–40 (1944).
The interpretive bulletins do not persuade me that the
plaintiffs’ gap time claim is cognizable under the FLSA.

Where

Congress has provided express causes of action and remedies,
courts should exercise caution before implying additional causes
of action and remedies despite the plain language of the
statute.

See Cooley, 2017 WL 1331059, at *5 & n.10; Trejo v.

Ryman Hosp. Properties, Inc., 795 F.3d 442, 450–51 (4th Cir.
2015).

Moreover, it is not clear that the interpretive

bulletins even endorse the plaintiffs’ theory.

And even if the

bulletins do, the DOL “provides no statutory support or reasoned
explanation for this interpretation,” which is “not grounded in
the statute.”

Lundy, 711 F.3d at 117 & n.9; see Murphy, 2017 WL

346977, at *4 (noting that analytical starting point is statute
itself and rejecting DOL bulletins).

Instead, that

interpretation “results in an expansion of the FLSA” beyond what
Congress provided.

Hensley, 2016 WL 1259968, at *4.

Accordingly, I grant the defendants’ motion to dismiss the claim
for straight-time pay under the FLSA.

See Doc. No. 1 at 18–23

(Count I).
This conclusion does not leave the plaintiffs without
recourse.

See Banks, 2017 WL 616433, at *404 (noting
12

availability of state law remedies); Lundy 711 F.3d at 116
(same).4

As discussed above, the plaintiffs have successfully

stated a claim for unpaid straight-time wages under state law.
B.

Overtime Claims
1.

FLSA Overtime Claim

The plaintiffs also bring a traditional claim for overtime
pay under the FLSA.

First Student argues that the plaintiffs

fail to adequately allege an overtime violation.

I agree.

“A claim for unpaid overtime wages must demonstrate that
the plaintiffs were employed ‘for a workweek longer than forty
hours’ and that any hours worked in excess of forty per week
were not compensated ‘at a rate not less than one and one-half
times the regular rate.’”

Manning v. Boston Med. Ctr. Corp.,

725 F.3d 34, 43 (1st Cir. 2013) (quoting 29 U.S.C. § 207(a)(1)).
In a class action, the complaint must sufficiently allege that
each named plaintiff worked more than forty hours in a given
week.

See id. at 44, 46–47.

The First Circuit addressed the standard for pleading an
overtime violation in Pruell v. Caritas Christi, 678 F.3d 10
(1st Cir. 2012).

The plaintiffs in Pruell alleged that they

The FLSA “supplements the hourly employment arrangement with
features that may not be guaranteed by state laws,” Lundy, 711
F.3d at 116, but straight-time claims are well-suited for
resolution under state law in state courts. See Koelker, 599 F.
Supp. 2d at 635 n.11; Monahan, 95 F.3d at 1267.
4

13

“regularly worked hours over 40 in a week and were not
compensated for such time,” but the court concluded that this
allegation was “little more than a paraphrase of the statute.”
Id. at 13.

The court explained that such allegations, “while

not stating ultimate legal conclusions, are nevertheless so
threadbare or speculative that they fail to cross ‘the line
between the conclusory and the factual.’”

Id. (quoting

Penalbert-Rosa v. Fortuño-Burset, 631 F.3d 592, 595 (1st Cir.
2011) (secondary quoted source omitted).

Comparing that

allegation to those found inadequate in Iqbal and its First
Circuit progeny, the court held that the plaintiffs had not
adequately alleged an overtime violation.

See id. at 13–14.

In

reaching this conclusion, the court explained that the pleading
deficiency was not cured merely because the plaintiffs alleged
mechanisms by which the minimum wage or overtime provisions “may
have been violated.”

Id. at 14 (emphasis partially omitted).

Thus, it was not sufficient that the plaintiffs alleged that
they regularly worked through their lunch breaks but that the
computer system tracking their time for compensation
automatically deducted a half hour for lunch.

See id. at 13–14.

The next year in Manning, a class action involving facts
similar to Pruell, the First Circuit returned to the standard
for pleading an overtime violation.
14

See Manning, 725 F.3d at

39, 46–47 (“We have seen this case before, albeit with different
parties.”).

Because the plaintiffs in Manning adequately

alleged that their employer did not pay them for compensable
work, the court proceeded to squarely address the separate
question of whether “the complaint alleges that each of the
individually named plaintiffs worked more than forty hours in a
given workweek, as required to bring a[n] FLSA overtime claim.”
Id. at 46.

Engaging in a plaintiff-by-plaintiff analysis, the

court noted that each named plaintiff was scheduled for a fortyhour workweek.

Id. at 46–47.

Because the plaintiffs also

identified additional, unscheduled, uncompensated working time
that pushed their total weekly hours beyond their scheduled
hours and above the forty-hour overtime threshold, the court
held that the complaint plausibly alleged an overtime violation.
See id.

The court thus distinguished its decision from the

Second Circuit’s decision in Lundy, where the compliant was
found inadequate because it did not “sufficiently allege 40
hours of work in a given workweek as well as some uncompensated
time in excess of the 40 hours.”

See Lundy v. Catholic Health

Sys. of Long Island Inc., 711 F.3d 106, 113–15 (2d Cir. 2013);
Manning, 725 F.3d at 46; cf. Dejesus v. HF Mgmt. Servs., LLC,
726 F.3d 85, 86, 88–90 (2d Cir. 2013) (tracing post-Lundy case
law elaborating pleading standard).
15

The complaint before me alleges several mechanisms by which
First Student undercompensated its employees.

First Student did

not compensate preliminary activities, postliminary activities,
or dead time between routes.

In addition, First Student did not

fully compensate driving time because it ignored exception
reports for estimated route times, improperly separated hours
into regular and charter categories, and misallocated time
across pay periods.

Thus, the complaint alleges mechanisms by

which First Student failed to pay employees for compensable
work.
Even so, the named plaintiffs fail to sufficiently plead
that they worked more than forty hours.

To state an overtime

violation, the plaintiffs allege that they “on a regular basis
worked in excess of forty hours, when all time is properly
counted, and were not paid time and a half for hours worked over
forty hours in the given week.”

Doc. No. 1–4 at 24.

This

statement is more like the allegations found inadequate in
Pruell and Lundy than the allegations found sufficient in
Manning.
The plaintiffs’ statement closely resembles the key
statement rejected in Pruell as “little more than a paraphrase

16

of the statute.”

See 678 F.3d at 13.5

Further, unlike in

Manning, the plaintiffs here do not even attempt to roughly
estimate the hours for which they were scheduled or compensated.
See 725 F.3d at 46; see also Lundy, 711 F.3d at 114–115.
Rather, they perfunctorily assert that some unspecified blend of
compensated and uncompensated time, the amount and relative
proportions of which they do not suggest, totaled over forty “on
a regular basis.”

Doc. No. 1–4 at 24.

Such allegations, “while

not stating ultimate legal conclusions, are nevertheless so
threadbare or speculative that they fail to cross ‘the line
between the conclusory and the factual.’”

Pruell, 678 F.3d at

13 (quoting Penalbert-Rosa, 631 F.3d at 595 (secondary quoted
source omitted)); see also Rosario, 2016 WL 4367019, at *6
(dismissing overtime claim in virtually identical case as here).
Accordingly, the plaintiffs do not provide sufficient factual
allegations to plausibly infer an overtime violation.
Although the key statements here depart from the allegation
rejected in Pruell in two ways, those differences are
insufficient to state an overtime violation.

First, the

plaintiffs state that they worked over forty hours “when all
The plaintiffs in Pruell alleged that, “[t]hroughout their
employment with defendants, Plaintiffs regularly worked hours
over 40 in a week and were not compensated for such time,
including the applicable premium pay.” Pruell v. Caritas
Christi, 678 F.3d 10, 13 (1st Cir. 2012).
5

17

time is properly counted.”

Doc. No. 1–4 at 24.

But this

statement merely repackages the mechanisms of undercompensation
alleged earlier.

See Manning, 725 F.3d at 44–46 (after

identifying compensable work that was not compensated,
proceeding to evaluate whether plaintiffs adequately alleged
working more than forty weekly hours).

Because the complaint

does not offer even a rough sense of the plaintiffs’ schedules
or compensated hours, I cannot plausibly infer that the
uncompensated activities push the plaintiffs’ weekly total over
the overtime threshold.

In other words, the complaint alleges

factual matter to show that an overtime violation is possible,
not plausible.

See Landers v. Quality Commc'ns, Inc., 771 F.3d

638, 646 (9th Cir. 2014), as amended (Jan. 26, 2015).
Second, the plaintiffs state that they did not receive an
overtime premium for the “given” week.

Doc. No. 1–4 at 24.

But

where the plaintiffs fail to plausibly allege that they ever
actually worked over forty hours, adding that they were
undercompensated in the “given” week does not suffice.

See

Dejesus, 726 F.3d at 90 (explaining that the “requirement that
plaintiffs must allege overtime without compensation in a
‘given’ workweek [is] not an invitation to provide an allpurpose pleading template alleging overtime in ‘some or all

18

workweeks’”); accord Hall v. DIRECTV, LLC, 846 F.3d 757, 776–8
(4th Cir. 2017) (citing Pruell, 678 F.3d at 13).
In holding that the plaintiffs here have failed to allege a
plausible overtime violation, I do not require unnecessarily
detailed allegations.
to context.

The pleading standard must be sensitive

See, e.g., Landers, 771 F.3d at 645.

Thus,

plaintiffs need not detail the specific number of hours beyond
forty that they worked, the sum of overtime wages due, or the
exact dates they worked overtime.
F.3d at 776–77.

See id. at 646; Hall, 846

Nor must plaintiffs “keep careful records and

plead their hours with mathematical precision.”
F.3d at 90.

Dejesus, 726

But to “nudge[] their claims across the line from

conceivable to plausible,” Twombly, 550 U.S. at 570, the
plaintiffs here must put some flesh on their skeletal overtime
allegations.

This conclusion comports with First Circuit

precedent and is strongly reinforced by the standards for
overtime pleading adopted by four other circuits.

See Hall, 846

F.3d at 776–77; Dejesus, 726 F.3d at 86, 88–90; Davis, 765 F.3d
at 241–243 & n.7; Landers, 771 F.3d at 644–46.
Because the plaintiffs have not plausibly alleged a
violation of the FLSA’s overtime provision, I grant First
Student’s motion to dismiss that claim with leave to amend.
Doc. No. 1–4 at 23–24 (Count II).
19

See

2.

State Law Overtime Claim

The plaintiffs also bring a claim for overtime under New
Hampshire law.

Their claim could be construed in three ways,

but each warrants dismissal.6

First, to the extent that the

plaintiffs seek unpaid overtime wages under RSA § 275:43 based
on a term in their employment agreement, the pleadings are
inadequate for the reasons just articulated.

Second, to the

extent that the plaintiffs seek to use § 275:43 to enforce a
right created by the FLSA’s overtime provision, rather than a
term in their employment agreement, their claim is not
cognizable.

See Trezvant v. Fid. Employer Servs. Corp., 434 F.

Supp. 2d 40, 56 (D. Mass. 2006); Gruda v. Fred H. Hamblet, Inc.,
No. 11-CV-053-JD, 2011 WL 2412958, at *1–2 (D.N.H. June 14,
2011); see also Román v. Maietta Const., Inc., 147 F.3d 71, 76
(1st Cir. 1998).

Third, to the extent that the plaintiffs rely

exclusively on the state overtime provision, their claim falls
into an express exception rendering them ineligible.

The state

The complaint labels the state overtime claim “breach of
contract,” but I follow the plaintiffs in construing it as a
statutory claim. See Doc. No. 13 at 17–18. I also deem waived
any argument that claims for overtime wages due under RSA §
275:43 pursuant to an overtime agreement are either (1)
unavailable because of the effect of another state statutory
provision, or (2) preempted under the FLSA. First Student did
not adequately develop those arguments. Accordingly, I grant
the plaintiffs leave to assert any such claim in an amended
complaint.
6

20

overtime provision requires employers to pay a premium rate for
overtime hours worked by their employees.

RSA § 279:21, VIII.

But there is an exemption to this statutory requirement for
“employers covered under the provisions of the [FLSA].”
279:21, VIII(b).

RSA §

Because the plaintiffs plead that First

Student is an employer engaged in interstate commerce and
covered by the FLSA, see Doc. No. 1–4 at 8–9, any claim under
the state overtime provision fails.

See Trezvant, 434 F. Supp.

2d at 54–56.
Accordingly, I grant First Student’s motion to dismiss the
plaintiffs’ claim for overtime under state law.

See Doc. No. 1–

4 at 26–27 (Count IV).

IV.

CONCLUSION

For the reasons set forth above, I grant First Student’s
motion to dismiss as to Counts I, II, and IV, but deny its
motion as to Count III (Doc. No. 8).
SO ORDERED.

/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
August 29, 2017
cc:

Steven A. Berkowitz, Esq.
Patrick T. Cronin, Esq.
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Shawn J. Sullivan, Esq.
Michael T. Grosso, Esq.
Christopher B. Kaczmarek, Esq.
Melissa L. McDonagh, Esq.

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