For whom the filing tolls - beware of hidden traps: time limitations and court supervision in class actions under the FLSA and the ADEA: plaintiff's counsel who make class allegations should cover themselves at the outset of the case by filing consents of the named plaintiffs with the complain.

• Author: Spero, Donald J.
• Position: Fair Labor Standards Act - Age Discrimination in Employment Act of 1967

Generally an attorney is justified in believing that any statutory time limitation on the filing of an action is tolled when the complaint is filed with the clerk of court. This belief may not be justified where the complaint is filed pursuant to the Fair Labor Standards Act (FLSA) (1) or the Age Discrimination in Employment Act (ADEA). (2) If the complaint contains an allegation that the suit is being brought on behalf of individuals in addition to the named plaintiffs, events subsequent to the filing of the complaint potentially can prevent the tolling of the limitations. Additionally the limitation period may still be running for those "unnamed" other individuals. (3)

The FLSA permits an action to collect unpaid minimum wages and overtime compensation to be filed "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." (4) The statute allows that an action "may be commenced within two years after the cause of action accrued ... except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued." (5) It follows that when violations have been occurring for two or more years, a day of recovery may be lost for each day that passes without an action being filed.

Under the ADEA an individual has 300 days from the date of an alleged act of discrimination to file an administrative charge with the EEOC in a state that has a law with prohibitions and enforcement proceedings similar to those provided by the ADEA. (6) Such a state is known as a "deferral state." In a deferral state a suit may not be filed until 60 days after proceedings have been commenced under state law. In a nondeferral state a complainant must file an administrative charge with the EEOC within 180 days of an alleged occurrence. In either type of jurisdiction suit may not be filed until at least 60 days after the filing of an administrative charge with the EEOC. (7) The 1991 Civil Rights Act amendment to the ADEA requires that a civil action must be commenced by a charging party within 90 days of receiving notice from the EEOC that it has terminated proceedings. (8)

Section 216(b) of the FLSA allows an action to be brought by an employee on behalf of "other employees similarly situated," but it limits who may be bound or benefitted by a representative action. The FLSA provides that "No employee shall be a party plaintiff to any such action [on behalf of `other employees similarly situated'] unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." (9) The ADEA adopts this section specifying that it is to "be enforced in accordance with the powers, remedies and procedures provided in [section] 216 ... of this title." (10)

The language of [section] 216 has been held to provide the exclusive means of filing a representative action under the FLSA and the ADEA. No potential plaintiff may either recover under or be bound by a representative action unless that individual "opts in" by filing a consent. "Opt out" class actions under Rule 23 of the Federal Rules of Civil Procedure are not permitted. The Fifth Circuit so ruled in an ADEA case, LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975), finding that "Rule 23(c) provides for `opt out' class actions. FLSA 16(b) allows as class members only those who 'opt in.' These two types of class actions are mutually irreconcilable." The Federal Appellate Court for the Eighth Circuit, in Schmidt v. Fuller Brush Company, 527 F.2d 532 (8th Cir. 1975), followed the reasoning of LaChapelle. It issued a writ of mandamus against district court Judge Miles Lord, who had allowed an FLSA action to proceed under Rule 23. The Ninth Circuit also held that FLSA class actions may not be brought under Rule 23 in Partlow v. Jewish Orphans Home of Southern California, Inc., 645 F.2d 757 (9th Cir. 1981).

When Does the Clock Stop Running?

There is no disputing that when an individual action is filed the action is deemed to have been commenced with the filing of the complaint. When a "collective or class" FLSA or ADEA action is filed, however, the named plaintiff or plaintiffs as well as those who opt in must file consents, whether at the same time as the complaint is filed or later.

A determinative question that may arise is when is an action a "collective or class" action within the meaning of [section] 16 of the FLSA? (11) In Gray v. Swanee-McDonald, Inc., 436 F.2d 652 (9th Cir. 1971), the Federal Appellate Court for the Ninth Circuit held that an FLSA action does not fulfill that definition merely because it is a multiparty action. The court found that in order for a suit to be a class action the complaint must allege that it is brought on behalf of unnamed individuals. It reasoned that no individual could be bound by the action but the named parties. The court observed that:

The act does not define the unusual expression "collective action." But the legislative history dictates that Congress intended the term to apply only to a representative action. The Conference Report states that a "Collective action [is] an action brought by an employee or employees for or in behalf of himself or themselves and other employees similarly situated...." The intent was to limit the res judicata effect of an action under this Act to those who chose to be involved in it. This action was not brought for the benefit of unnamed plaintiffs, or in the name of any plaintiff who was suing in a representative capacity. Each plaintiff sued for himself. No res judicata effect could attach to anyone other than the named parties. The joinder of several plaintiffs in a single action does not convert their individual suits into a "collective or class" action. Citations omitted, emphasis supplied.) (12)

Like reasoning was applied by the Sixth Circuit in a multiple plaintiff ADEA case, Morelock v. The NCR Corporation, 586 F.2d 1096 (6th Cir. 1978). The defendant argued that the suit was time barred as the named plaintiffs had not filed consents. The court held that the filing of consents was not necessary as the action consisted of individual suits. The plaintiffs did not purport to represent any unnamed individuals.

Unnamed individuals may not join an FLSA action by filing a consent unless the complaint contains an allegation that it is being brought in a representative capacity. Where the action is not in a representative capacity the limitations for those who later join is not tolled until their complaints are filed. (13)

Under the reasoning of the Sixth and Ninth circuits, the complaint, at the very least, must allege that the action is being brought in a representative capacity for individuals other than the named plaintiffs before it is subject to the requirement that the named plaintiffs must file consents. The next question is does the mere allegation that the action...