One big frustration we FLSA lawyers have is watching the limitations period run against the claims of workers who have not yet learned about the lawsuit because the originating plaintiff’s “conditional certification” motion has not yet been filed. This happens because under the FLSA’s collective action device, unlike Rule 23’s class action device, the filing of the complaint does not automatically toll the running of the limitations period. Thus, members of the FLSA collective do not toll running of the statute of limitations period until they affirmatively opt-in. This is really unfortunate, since most workers do not learn about an FLSA collective action lawsuit until a conditional certification motion is granted and court supervised notice is issued.
It seems like federal judges are becoming more sympathetic to the dilemma caused by the FLSA’s running limitations period. I’ve been noticing quite a few opinions in which judges toll the running of the limitations period where resolution of the conditional certification motion has been delayed by circumstances beyond the workers’ control. Here are quick summaries of three cases decisions from within the Third Circuit that you might find useful:
DePalma v. The Scotts Company LLC, 2017 U.S. Dist. LEXIS 8884 (D.N.J. Jan. 20, 2017) — Judge McNulty held that tolling was justified where a full year expired between the plaintiff’s conditional certification motion and the court’s decision granting such motion. This opinion contains an extensive and scholarly review of the decisional law. See id. at *7-19.
McLaughlin v. Seneca Resources Corp., 2018 U.S. Dist. LEXIS 63038 (W.D. Pa. Mar. 13, 2018) — Judge Fischer held that tolling was justified where conditional certification was delayed by the defendant’s filing of unsuccessful Rule 12 motions.
Hunt v. McKesson Group, 2018 U.S. Dist. LEXIS 145733 (W.D. Pa. Aug. 28, 2018) — Judge Hornak held that tolling was justified to the extend conditional certification was delayed by the defendant’s refusal to turn over discovery and engage in unsuccessful discovery motions.
I hope the above cases will help you if you seek tolling in an FLSA collective action.