For those who don’t opt in until the class is conditionally certified, that’s who.  In Greenstein v. Meredith Corp., 2013 WL 4028732 (D. Kan., Aug. 7, 2013), class counsel asked the District Court to equitably toll the limitations period for the eleven-month period from the time plaintiffs’ motion for conditional certification was filed, and the time it was granted. Normally in FLSA cases the limitations period is not tolled until the class member opts into the conditionally certified class. Plaintiff argued that the long delay in resolving conditional certification justified equitable tolling.

Judge Rogers disagreed, explaining that although the Tenth Circuit has not addressed the issue of equitable tolling in the context of an FLSA class, it usually applies that doctrine restrictively only where the defendant has actively misled the plaintiff respecting the cause of action, or in other extraordinary circumstances.

Judge Rogers also determined that the factors applied by other judges in the district when dealing with equitable tolling of FLSA cases called for the denial of equitable tolling under the facts of this case.  Those factors include:

  1. whether the plaintiffs lacked actual notice of their rights and obligations; 2) whether they lacked constructive notice; 3) the diligence with which they pursued their rights; 4) whether the defendant would be prejudiced if the statute were tolled; and 5) the reasonableness of the plaintiffs remaining ignorant of their rights.

The Court concluded that the opt-in plaintiffs had effectively the same notice and opportunity to file claims as the named plaintiffs, and lacked any information that they had diligently pursued their rights.  So beware of lengthy delays in conditional certification, and don’t rely on equitable tolling to save time-barred claims of opt-in class members.  Get your opt-ins opted in before the ruling on conditional class certification.