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4th Cir.: Statute of Limitations Equitably Tolled Where Employer Fails to Post Required FLSA Notice

December 6, 2014 12:02 pm

Cruz v. Maypa

This case involved a former domestic servant who sued her former employers alleging claims for forced labor and involuntary servitude under the Victims of Trafficking and Violence Protection Act (TVPA), willful violation of Fair Labor Standards Act (FLSA), and state law claims for breach of contract, fraudulent misrepresentation, and false imprisonment. After the court below dismissed the case on statute of limitations grounds, plaintiff appealed. As discussed here, the Fourth Circuit joined other courts who have similarly held, and held that where an employer fails to post the required FLSA Notice, the statute of limitations for an employees claims under the FLSA are tolled until he or she either obtains an attorney, or obtains actual knowledge of his or her rights.

Initially, the Fourth Circuit identified two circumstances under which equitable tolling may generally be applicable:

[E]quitable tolling is available when 1) “the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant,” or 2) “extraordinary circumstances beyond plaintiffs’ control made it impossible to file the claims on time.” Harris, 209 F.3d at 330 (internal quotation marks omitted). Cruz asks us to evaluate this rule in light of Vance v. Whirlpool Corp., 716 F.2d 1010 (4th Cir.1983), in which this Court found that the district court properly held that the 180–day filing requirement of the Age Discrimination in Employment Act (“ADEA”) was tolled by reason of the plaintiff’s employer’s failure to post statutory notice of workers’ rights under the Act. Id. at 1013.

Extending its reasoning from Vance, an ADEA claim to claims under the FLSA, the court explained:

It makes good sense to extend our reasoning in Vance to the FLSA. The notice requirements in the ADEA and the FLSA are almost identical. Compare 29 C.F.R. § 1627.10 (requiring employers to “post and keep posted in conspicuous places … the notice pertaining to the applicability of the [ADEA]”), with id. § 516 .4 (requiring employers “post and keep posted a notice explaining the [FLSA] … in conspicuous places”). The purpose of these requirements is to ensure that those protected under the Acts are aware of and able to assert their rights. Although Vance tolled an administrative filing deadline rather than a statute of limitations, the FLSA lacks an equivalent administrative filing requirement; thus, the FLSA’s deadline to sue is, like the ADEA’s administrative filing deadline, the critical juncture at which a claimant’s rights are preserved or lost. Neither the ADEA nor the FLSA inflicts statutory penalties for failure to comply with the notice requirements. See Cortez v. Medina’s Landscaping, Inc., No. 00 C 6320, 2002 WL 31175471, at *5 (N.D.Ill. Sept.30, 2002) (extending an actual notice tolling rule similar to Vance from the ADEA to the FLSA). Therefore, absent a tolling rule, employers would have no incentive to post notice since they could hide the fact of their violations from employees until any relevant claims expired. For all of these reasons, this Court’s analysis in Vance applies with equal force to the notice requirement of the FLSA. Under Vance, tolling based on lack of notice continues until the claimant retains an attorney or obtains actual knowledge of her rights. 716 F.2d at 1013. The current factual record, which is limited to the amended complaint, does not identify when Cruz first retained a lawyer or learned of her rights under the FLSA. Therefore, the district court should allow discovery on remand to determine in the first instance whether Cruz’s FLSA claim was time-barred despite being equitably tolled.

Click Cruz v. Maypa to read the entire Opinion.

D.Nev.: Statute of Limitations Tolled for Employees Who Opted Into First-Filed Case Where Conditional Certification Was Denied (and Their Consents Were Dismissed)

August 22, 2013 8:03 am / Leave a comment

Orduna v. Champion Drywall, Inc.

This case was before the court on multiple motions, including plaintiff’s motion for tolling the statute of limitations. As discussed here, the precise issue before the court was what effect, if any, a plaintiff’s consent to join—filed in a prior lawsuit where conditional certification was ultimately denied, and such consent was dismissed—has on such opt-in’s statute of limitations. Electing to treat the motion as one for equitable tolling, the court held that such circumstances amounted to “extraordinary circumstances” such that equitable tolling was warranted. However, the court tolling the statute of limitations only for such time that the consent to join was filed with the court in the prior case, prior to dismissal.

The court reasoned, in part:

Plaintiffs assert that because they filed their consents to sue in a timely manner in Champion I, the statute of limitations for those claims should be equitably tolled to the date on which each plaintiff filed his or her consent. Defendants argue that plaintiffs’ motion should be denied or, in the alternative, tolling should only apply from the date that each plaintiff filed his or her consent until the date of the court’s denial of certification in Champion I on March 27, 2012. The court agrees with defendants’ latter position…

Upon decertification of the collective [action], therefore, it is critical to preserve opt-in plaintiffs’ ability to timely file individual actions.” Sliger v. Prospect Mortgage, LLC, 2012 WL 6005711 (E.D.Cal. Nov.30, 2012).

The Ninth Circuit has recognized the doctrine of equitable tolling of an FLSA claim. Partlow v. Lewis Orphans’ Home, Inc., 645 F.2d 757, 760 (9th Cir.1981), abrogated on other grounds, Hoffman–La Roche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Such tolling “applies when the plaintiff is prevented from asserting a claim by wrongful conduct on the part of the defendant, or when extraordinary circumstances beyond the plaintiff’s control made it impossible to file a claim on time.” Id. at 60. The doctrine of equitable tolling preserves a plaintiff’s claims when strict application of the statue of limitations would be inequitable. See United States v. Patterson, 211 F.3d 927, 930 (5th Cir.2000). Equitable tolling applies only in “rare and exceptional circumstances,” Teemac v. Henderson, 298 F.3d 452, 457 (5th Cir.2002), and should be applied sparingly. Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000).

Applying this reasoning, the court granted the plaintiffs’ motion.  However, it limited tolling to the period of time in during which the opt-ins’ consents had been filed in the prior case:

Here, plaintiffs have not shown that the statute of limitations should be equitably tolled past the court’s denial of certification in Champion I. Plaintiffs claim that they did not know that the court would not grant the collective certification in that case, and that to preserve their rights, each plaintiff in a collective action would have to file individual actions at the same time they filed their consents to sue. The failure to predict the outcome of a motion for collective certification is experienced by each FLSA collective action litigant, and the possibility that diligence would be required in the filing of an individual claim if a collective action was denied or de-certified neither amounts to extraordinary circumstances nor a situation out of a plaintiff’s control.

Click Orduna v. Champion Drywall, Inc. to read the entire Opinion.

D.Colo.: Statute of Limitations Tolled During Time Motion for Conditional Certification Pending

June 29, 2012 7:53 am / 1 Comment on D.Colo.: Statute of Limitations Tolled During Time Motion for Conditional Certification Pending

Stransky v. HealthONE of Denver, Inc.

This case was before the court on the plaintiffs’ Motion to Toll the Statute of Limitations, which was filed simultaneously with the plaintiffs’ motion for conditional certification of the case as a collective action. In granting the plaintiffs motion (in part) and tolling the statute of limitations as of the date on which the plaintiffs sought conditional certification, the court looked to the both the procedural realities of the opt-in provisions of 216(b) and the remedial purpose behind the FLSA. Significantly, the court noted that there would be no prejudice to the defendant in granting such tolling while the potential plaintiffs would be significantly prejudiced by the continued expiration of their respective statutes of limitations if the tolling were not granted.

After discussing cases from around the country that have granted equitable tolling under similar circumstances, largely based upon the amount of time that it took for the court to rule upon a plaintiff’s pending motion for conditional certification, because same is in the interests of justice, the court honed in on the policy supporting such decisions:

In the case of a collective FLSA action, a least one district court in the Tenth Circuit has explained that the unique circumstances of a collective action “is not only significant but justifies tolling the limitations period [ ] for the FLSA putative class until the court authorizes the provision of notice to putative class members or issues an order denying the provision of notice.” In re Bank of America Wage and Hour Emp’t Litig., No. 10–MDL–2138, 2010 WL 4180530 (D.Kan. Oct.20, 2010). In making that equitable tolling determination, the court in In re Bank of America utilized a flexible standard, where a court considers five factors in determining whether to equitably toll a statute of limitations: (1) lack of notice of the filing requirement; (2) lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the defendant; and (5) the plaintiff’s reasonableness in remaining ignorant of the particular legal requirement. Id. (citing Graham–Humphreys, 209 F.3d at 561).

Plaintiffs argue that the statue of limitations should be equitably tolled here in the interest of justice in order to protect the Opt-in Plaintiffs’ diminishing claims. The Court agrees. Although early notice to Opt-in Plaintiffs in a collective action such as this is favored, such notice was not possible here as Defendant is in sole possession of the names and last known physical addresses of all potential Opt-in Plaintiffs. As such, allowing Opt-in Plaintiffs’ claims to diminish or expire due to circumstances beyond their direct control would be particularly unjust. The Tenth Circuit has also recognized the possible need for equitable tolling under such conditions. See Gray v. Phillips Petroleum Co., 858 F.2d 610, 616 (10th Cir.1988) (tolling statute of limitations where plaintiffs were lulled into inaction and defendant did not show that any “significant prejudice” would result from allowing plaintiffs to proceed; defendant was “fully apprised” of the plaintiffs’ claims). Moreover, Defendant will not be prejudiced by such equitable tolling. See Baden–Winterwood, 484 F.Supp.2d at 828–29 (defendant not prejudiced because it “had full knowledge that the named Plaintiff brought the suit as a collective action on the date of the filing” and “was fully aware of its scope of potential liability.”). Indeed, Defendant fails to claim it would be prejudiced in any manner, let alone prejudiced unduly, were this Court to toll the applicable limitations period. Thus, having considered the particular facts of this case, the Court finds that the interests of justice are best served by tolling the statute of limitations for the Opt-in Plaintiffs in this case.

However, while the court granted the plaintiffs motion, it declined to toll the statute of limitations back to the date of the filing of the original complaint. Instead, the court held the appropriate date to begin tolling was the date on which the plaintiffs filed their motion for conditional certification.

Click Stransky v. HealthONE of Denver, Inc. to read the entire Corrected Order Granting in Part Plaintiffs’ Motion to Toll the Statute of Limitations.