Companies opposing conditional certification in FLSA overtime cases often argue that, even if conditional certification is granted and notice is issued to the class, the notice mailing should be limited to class members who have been employed within two – rather than three – years from the notice date. Â This argument is premised on the fact that, under the FLSA, a three-year limitations period applies only if the company engaged in a “willful” violation of the FLSA. This argument frequently is rejected by district courts. As recently explained by Judge Thomas Vanaskie of the United States District Court in Scranton, Pennsylvania, FLSA notice forms should be based on the three-year limitations period because the question of the company’s “willfulness” is a merits issue that is not properly before the court at the conditional certification stage. See Gallagher v. Lackawanna Cty., 2008 U.S. Dist. LEXIS 43722, *30-31 (M.D. Pa. May 30, 2008). This approach is consistent with the overwhelming majority cases, including the following decisions from district courts in Connecticut, Arkansas, Missouri, California, and Pennsylvania. See, e.g., Neary v. Metro. Prop. & Cas. Ins. Co., 517 F. Supp. 2d 606, 623 (D. Conn. 2007); Resendiz-Ramirez v. P&H Forestry, LLC, 515 F. Supp. 2d 937, 942 (W.D. Ark. 2007); Fast v. Applebees Int’l, Inc., 2007 U.S. Dist. LEXIS 44365, *12-13 (W.D. Mo. June 19, 2007); Agdipa v. Grant Joint Union High Sch. Dist., 2007 U.S. Dist. LEXIS 26506, *7 (E.D. Cal. Apr. 10, 2007); Romero v. Producers Dairy Foods, Inc., 235 F.R.D. 474, 484 (E.D. Cal. 2006); Chabrier v. Willmington Finance, Inc., 2006 U.S. Dist. LEXIS 90756, *11 (E.D. Pa. Dec. 13, 2006).
