Update 10/14/2022
The Question- Does FLSA Claims Survive Death
We have been confronted with the issue of does a deceased employee’s claim for unpaid overtime or minimum wage survives an employee’s death. This question has should be answered in the affirmative.
The Analysis
The analysis must start with the Federal Rules of Civil Procedure. Rule 25(a)(1) provides that the Court may order substitution “[i]f a party dies and the claim is not extinguished.” The rule goes on to provide that a motion to substitute needs to be filed by a party, decedent’s successor, or decedent’s representative within 90 days of service of a statement noting the death. As such the inquiry is:
- has a party died;
- did the claim extinguish with the death;
- has the motion to substitute been filed by a party, decedent’s successor, or decedent’s representative; and
- is the motion timely.
The Party has Died
Death is easy to conclude. It is eventually uncovered by a family member contacting counsel. Or, counsel’s office attempting to contact the party and being advised of the death.
The Claim Did Not Extinguish with Death
Claims pursuant to the FLSA are not extinguished upon death and survive to the estate’s representative. Daigle v. Angeline Enter., Inc., 2015 WL 7271746 *1 (M.D. Fla. Oct. 27, 2015) (“a claim for compensation due under the FLSA survives the death of the employee.”).
File The Proper Motion
The answer to the third question, “has the motion to substitute been filed by a party, decedent’s successor, or decedent’s representative,” can at times be difficult to answer. How do you determine the “decedent’s successor” or “decedent’s representative” if the deceased party was the only Plaintiff?
Yet, neither of these terms are defined by the rule. Some courts have looked to state law to determine an appropriate representative. As such counsel should have the individual appointed the personal representative of the decedent’s estate and obtained Letters of Administration from a State Court to act as “decedent’s successor” or “decedent’s representative”.
Timely File the Proper Motion
The motion for substitution must be filed within ninety (90) days of service of a statement noting death. The rule does not direct when or by whom a valid suggestion of death must be filed. It is only once the suggestion of death is filed on the Court record that the ninety (90) days to file the motion for substitution commences to run. As Judge Hodges of the United States District Court for the Middle District of Florida observed,
In practice, it is not unusual for a defendant to suggest death upon the record to impose upon the plaintiff’s side the obligation to move for the substitution of a party, as a tactical maneuver of an adversary premised upon expediting the action or getting it dismissed. On the other hand, it would be highly unusual for a representative of a deceased plaintiff to file a suggestion of death since doing so is not a prerequisite to filing a motion for substitution and would otherwise be contrary to the interest of the deceased party’s estate.
Schmidt v. Merrill Lynch Trust Co., 2008 WL 2694891 *2 (M.D. Fla. June 30, 2008). A motion for substitution must be filed within ninety (90) days once the suggestion of death is filed.
Conclusion- Contact our Orlando Overtime Attorneys
If you or someone you know has been a victim of an unfair employment practice or have questions regarding your right to overtime pay or minimum wage, you should contact an overtime pay and minimum wage lawyer at LaBar & Adams, P.A. at 407-835-8968 or fill out the online form on our website.
