Labor & Employment Law Daily Wrap Up, WAGE-HOUR—CLASS ACTIONS—1st Cir.: Refusal to toll FLSA limitations period for opt-in plaintiffs was not error, (Jun 23, 2025)

By Ronald Miller, J.D.

To demonstrate an entitlement to equitable tolling, the party seeking the tolling must prove: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.”

The First Circuit affirmed a district court’s denial of an opt-in plaintiff’s request to toll the FLSA’s statute of limitations as to wage claims in a collective action. This appeal turned on the question when, if ever, in “representative” actions, does a district court’s “significant delay” in ruling on the named plaintiff’s motion to issue notice of the action to potential opt-in plaintiffs require that the statute of limitations for their claims be tolled for the period of that delay? The appeals court observed that, ordinarily, tolling may be obtained only for a claimant who, individually, demonstrates an “extraordinary circumstance” and his own reasonable diligence. Because the opt-in plaintiff challenged the district court’s refusal to craft an unconventional tolling rule, it did not abuse its discretion in failing to apply tolling here (Kwoka v. Enterprise Rent-A-Car Co. of Boston, LLC, No. 24-1126 (1st Cir. Jun. 18, 2025)).

On December 21, 2017, the employee filed a suit against Enterprise alleging that it failed to pay overtime wages to assistant branch managers prior to November 27, 2017. The employee worked at various Enterprise locations between May 2014 and January 2017 and assumed the role of assistant branch manager in July 2016.

Prior to November 27, 2016, assistant branch manager positions were classified as “exempt” from overtime requirements of the FLSA and Massachusetts law. On November 9, 2016; however, the employee received a memorandum informing him that his position would be reclassified as non-exempt starting with the pay period beginning November 27, 2016.

Limitations period. FLSA claims are subject to a two-year limitations period unless the alleged violation is willful, in which case the limitations period is three years. Under 29 U.S.C. § 256, the employee’s FLSA action was “considered to be commenced” for himself” on the date when the complaint is filed” because “he is specifically named as a party plaintiff in the complaint.” The action commenced for the opt-in plaintiffs only when they filed their written consent forms with the district court, and thereby became parties to the representative action themselves.

On the same day that he filed his complaint, the employee sought conditional certification of a class of “similarly situated” employees—identified as including assistant branch managers who worked for Enterprise during the relevant time. It also requested that the court allow notice of this action to be distributed to other assistant branch managers who have worked for Enterprise across the country during the relevant period.

On January 5, 2018, the parties jointly requested a 30-day extension for Enterprise to answer the employee’s complaint. They also stipulated to tolling the statute of limitations “for all potential opt-in plaintiffs during this thirty-day extension period.” Accordingly, absent additional tolling, the statute of limitations was set to expire as to all the individuals who were potential opt-ins to the representative action on either January 1, 2019, or, insofar as the violation was willful, January 1, 2020.

Stay of notice. On March 1, 2018, the district court granted Enterprise’s motion to stay briefing on the motion for the issuance of notice. It determined that issuance of a notice of should be deferred at least until Enterprise’s motion to dismiss is decided. On September 18, 2018, the district court dismissed all the claims against Enterprise Holding, the parent company. It reasoned that the employee failed to adequately plead facts supporting the plausible conclusion that he had an employment relationship with the parent company.

Amended complaint. On October 15, 2018, the employee filed a First Amended Complaint (FAC) which alleged that the November 9, 2016 memorandum on the reclassification of assistant branch managers was sent by an official from the parent company. Thereafter, a dispute ensued over the factual allegation concerning the official. At a hearing, the district court expressed concern whether the employee had a proper basis for including the allegations about the official.

On March 6, 2020, after the limitations period had expired for all the members of the putative class—the employee amended his complaint once more. The Second Amended Complaint omitted the disputed allegation concerning official. Enterprise moved to dismiss the SAC on March 30, 2020. On November 13, 2020, the district court denied the motion to dismiss. It concluded that evidence supported an inference that the parent company made the decision to reclassify assistant branch managers as non-exempt.

On December 2, 2020, Enterprise filed a motion for reconsideration of the district court’s denial of the motion to dismiss the SAC. The district court denied that motion on September 2, 2021.

On October 4, 2021, the employee filed a supplemental brief supporting issuance of the notice. On December 23, 2021, based on its concern that it might lack personal jurisdiction over the parent company, the district court stayed the case. On January 13, 2022, the First Circuit’s decision in Waters v. Day & Zimmermann NPS, Inc. came down, resolving the district court’s concern regarding personal jurisdiction.

Equitable tolling. Thereafter, the district court, on June 28, 2022, conditionally certified a class of potential plaintiffs and authorized issuance of notice to its members. The district court recognized, however, that, by that time, the statute of limitations had expired for all potential opt-ins to the suit. Ultimately, 1,462 individuals submitted written consent forms to opt in to suit.

The employee then filed a memorandum of law arguing that “equitable tolling should be applied to the [FLSA] claims of all of the [o]pt-in plaintiffs.” To demonstrate an entitlement to equitable tolling, the party seeking the tolling must prove: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.”

The employee argued to the district court that “equitable tolling is appropriate where there have been delays in determining a motion for conditional certification under the FLSA, and therefore putative opt-in plaintiffs have not received timely notice of a case.” On October 24, 2023, the district court denied the employee’s request for equitable tolling... with prejudice and “decertified” the conditionally certified class “[a]s there [were] no putative plaintiffs with timely claims who ha[d] consented to opt-in.” This appeal followed.

Abuse of discretion. On appeal, the opt-in plaintiffs argued that the district court abused its discretion in denying them tolling for the period between Enterprise’s motion to stay briefing on the employee’s motion for the issuance of notice and the district court’s order granting the motion. They contended that they are entitled to the requested tolling on an “across-the-board” or “categorical” basis, such that they need not make individualized showings about why each of them was unable to opt in to the action before the limitations period had run on January 1, 2020.

Ordinarily, the FLSA merely allows for tolling in accord with “background” equitable tolling principles, observed the appeals court. Those background principles suggest that tolling may be obtained only for a claimant who, individually, demonstrates an “extraordinary circumstance” and his own reasonable diligence. As a result, the opt-in plaintiffs are necessarily challenging the district court’s refusal to craft an unconventional tolling rule. Thus, the appeals court concluded that the district court did not abuse its discretion in failing to apply it here.

Notice to potential plaintiffs. The Supreme Court has agreed that a district court may authorize the issuance of notice to a putative class in a representative action. The Court noted that by “monitoring preparation and distribution of the notice,” the trial court could “settl[e] disputes about the content of the notice before it is distributed.”

However, the Court has prescribed no timetable as to when such notice must be authorized. Rather, it has explained that it lies within the discretion of a district court to begin its involvement early.

Like the Supreme Court, the First Circuit has not held that a district court must authorize notice at an early stage. Nor has it identified the circumstances in which a district court might be deemed to have abused its discretion in failing to authorize notice at an early stage of the proceedings.

The district court cases relied on by the opt-in plaintiffs for their proposed tolling rule do not suggest that the length of the delay—no matter the reason for it—in and of itself warrants tolling.

The First Circuit concluded that even if it were to assume that categorical tolling could be available in FLSA collective actions, the district court did not abuse its discretion in denying such tolling just because there is a significant gap in time between when the named plaintiff moves to have notice authorized and when it is authorized.

Accordingly, the appeals court affirmed the district court’s denial of the named plaintiff’s request to toll the FLSA’s statute of limitations as to every opt-in plaintiff.

The case is No. 24-1126.

Judge: Barron, D.

Attorneys: Thomas Fowler (Lichten & Liss-Riordan) Kyle Kwoka. Jason C. Schwartz (Gibson, Dunn & Crutcher) and Barry J. Miller (Seyfarth Shaw) for Enterprise Rent-A-Car Co. of Boston, LLC.

Companies: Enterprise Rent-A-Car Co. of Boston, LLC

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