Third Circuit on waiver of affirmative defenses in wage and hour claims

In Clews v. Cnty. of Schuykill, three former deputy coroners filed claims under the Fair Labor Standards Act (FLSA), seeking overtime pay and alleging retaliation (firing) for complaining about not getting overtime pay. The employer argued that the employees were not covered by the FLSA because they fell under the "personal staff exception," which excludes people who work as personal staff for elected officials.*

The County, however, did not plead this affirmative defense in its answer to the complaint. Generally, a party must plead affirmative defenses as part of their answer. See, Fed. R. Civ. P. 8.1(c). That said, the Court noted past precedent holding that affirmative defenses may be raised at any time "so long as the plaintiff suffers no prejudice." Sharp v. Johnson, 669 F.3d 144, 158 (3d Cir. 2012).

Not official use.

Here, the plaintiffs "did not explain what could have been developed in discovery with more explicit notice of the exception." Furthermore, they did not request to reopen discovery even after the County  had specifically briefed the issue. The County also consistently asserted that the employees were exempt from the FLSA (while not specifically identifying the personal staff exception in the answer). Finally, the County also questioned each of the plaintiffs about their job responsibilities. 

The Court ultimately held that the county did not waive the personal staff exception affirmative defense by failing to plead it in the answer to the complaint because the plaintiffs could not show any prejudice. 

Lessons for both sides here:

• Defendants should raise affirmative defenses as early as possible to avoid waiver.
• Plaintiffs should request to reopen discovery if a new affirmative defense pops up after discovery. If it's granted, then they can explore the affirmative defense. If it's denied, they have a stronger argument that they incurred prejudice as a result of the defendant raising it late in the game. 

* The Third Circuit also analyzed the scope of the personal staff exception - perhaps an issue for a future blog post.