Overtime Law

An Overtime and Minimum Wage Claim Survives a Party’s Death


By Scott C. Adams | Employment Law Attorney
Published: November 17, 2016

While it may seem somewhat obscure and fatalistic, over the years the Employment Lawyers at LaBar & Adams, P.A. have been confronted with the issue of whether under Federal Law a deceased employee’s claim for unpaid overtime or minimum wage pursuant to the Fair Labor Standards Act (“FLSA”) survives to the employee’s estate.  This question has should be answered in the affirmative.

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 further provides 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. Thus, the inquiry is:

  1. has a party died;
  2. did the claim extinguish with the death;
  3. has the motion to substitute been filed by a party, decedent’s successor, or decedent’s representative; and
  4. is the motion timely.

The first question, “has a party died,” is fairly easy to answer.  Such events are usually uncovered by a family member contacting counsel or counsel’s office attempting to contact the party and being advised of the death.

With regards to the second question, “did the claim extinguish with the death,” Federal Case law is clear, claims pursuant to the FLSA are not extinguished upon death and survive to the estate’s representative.  See e.g. 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.”); accord Acebal v. U.S., 60 Fed. CL. 551, 557 (2004); Lai Yoong Low, et. al. v. Tian Yu, Inc., et. al., 2015 WL 1011699 *3 (S.D.N.Y. March 9, 2015); McFeely v. Jackson Street Entertainment, LLC., 2014 WL 4182231 *2 (D. Md. Aug. 19, 2014); Veliz v. Cintas Corp., 2008 WL 281171 *2, fn. 2 (N.D. Cal. July 17, 2008).

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. If the deceased party was the only Plaintiff, then the question becomes how do you determine the “decedent’s successor” or “decedent’s representative?”  Neither of these terms are defined by the rule.  Some courts have looked to state law to determine an appropriate representative. Daigle v. Angeline Enter., Inc., 2015 WL 7271746 *2 (M.D. Fla. Oct. 27, 2015) (“The ability to sue in a representative capacity is determined by the relevant state law”); see also Hardy v. Potter, 2009 WL 2391239 at 2-3 (S.D. Ga. Aug. 4, 2009) (finding that surviving spouse who had not yet been legally appointed as “personal representative,” nor who had yet distributed an estate without probate could not be substituted as plaintiff). Thus, it appears the safest course of action for counsel to take is to have the individual that has been 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”.

Finally, the motion for substitution must be filed within ninety (90) days of service of a statement noting death.  Interestingly, 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). Regardless, once the suggestion of death is filed, the motion for substitution must be filed within ninety (90) days to be timely.

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 located on this page and we will contact you shortly. We offer a free consultation. We value your privacy and we will keep your information confidential.



Scott Adams - Employment Lawyer






Scott C. Adams
Employment Law Attorney

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