USA – MASSACHUSETTS Trends and Developments Contributed by: William C. Martucci, Stephen I. Hansen, Lisa O. White and Brandon L. Arber, Shook, Hardy & Bacon LLP
The plaintiff, Mamadou Bah, an assistant branch manager for Enterprise Rent-A-Car, filed an action challenging his “exempt” classification from overtime wage requirements of the FLSA and Massachusetts law. He filed the action in December 2017, alleging that the defendant joint employers had failed to pay him and other assistant branch managers overtime wages prior to 27 November 2016. On the date the complaint was filed, Bah also filed a Motion to Issue Notice Pursuant to Section 216 (b) of the FLSA, which sought conditional certification of a collective of similarly situated assistant branch managers in the three years prior to November 2016. In response, the defendants moved to stay briefing on the motion due to a pending motion to dismiss, which the District Court granted. Later that year, the Court dismissed all claims against one of the defendants and, in response, Bah filed an amended complaint on 15 October 2018. Further motion practice continued in response to the amended complaint, which led to Bah filing a second amended complaint. More briefing – a motion to dis - miss the second amended complaint that was denied and a motion for reconsideration that was also denied – meant that the original stay order was not addressed until 5 November 2021. By this time, almost four years had elapsed since the filing of the original complaint, with the statute of limitations for claims under Section 216 (b) continuing to run for assistant branch manag- ers other than the named plaintiff, Bah. The parties were then instructed by the Court to brief the proposed conditional certification of nationwide assistant managers. Defendants opposed certification of a nationwide collective, and further, sought an addi- tional stay due to a pending ruling on a related ques- tion about personal jurisdiction under consideration by the First Circuit in Waters v Day & Zimmerman NPS, Inc., 23 F.4th 84, 89 (1st Cir. 2022) . Over Bah’s objec - tion, a stay was ordered. The Waters decision issued on 13 January 2022 resolved the District Court’s con- cern regarding personal jurisdiction and a class was conditionally certified by order dated 28 June 2022. At that time, the District Court recognised that the statute of limitations had expired for all potential opt- ins to Bah’s lawsuit. Nonetheless, the Court ordered issuance of the FLSA notice on the basis that opt-in plaintiffs “would not be barred from joining the collec -
tive if he or she prove[d] that equitable tolling of the statute of limitations applie[d].” Over 1,400 individuals filed opt-in forms in response to the notice, with a large percentage also signing tem- plate declarations to explain why they had not pursued their claims earlier. Under Supreme Court precedent, the opt-in plaintiffs were required to demonstrate that they had been “diligently” pursuing their rights and that “some extraordinary circumstance” prevented timely filing of claims. (See Menominee Indian Tribe of Wisconsin v United States, 577 U.S. 250, 255, 136 S.Ct. 750 (2016) .) The District Court concluded that Bah had failed to demonstrate that the opt-ins had diligently pursued their claims and declined to cat- egorically grant tolling to all of the opt-ins, as that approach would “make equitable tolling common and disrupt the balance struck by Congress in enacting the FLSA.” The Court also rejected the argument that judicial delay was an “extraordinary circumstance” that supported tolling, because the delays were attributable to the “normal course of deliberation and decision.” The Court also noted that Bah had never filed a motion to toll the statute of limitations before it had expired. The Court then decertified the collective and entered a partial final judgment. An interlocutory appeal followed. Plaintiff-appellants argued that it was abuse of dis - cretion to not order tolling on a categorical basis, as opposed to making individualised showings why each person was unable to timely opt in to the lawsuit. They claimed categorical tolling was warranted based on unique circumstances; namely, the “significant delay” in the court’s ruling on the motion to issue notice to the putative class, in conjunction with the non-obvious nature of the alleged FLSA violations and the defend- ants’ alleged concealment of those violations. The First Circuit readily dismissed appellants’ arguments as to concealment and non-obviousness of the viola- tions and focused its attention on the effects of “sig - nificant delay”. The First Circuit highlighted that the cases that plaintiffs rely upon for tolling as the result of significant delays do not suggest that the delay itself, no matter the reason for it, warrants tolling. Moreover, the First Circuit found that in this case, the issuance of the notice after the expiration of the limitations period was attributable to the plaintiff’s own defects
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