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News | Oct 10, 2019

Third Circuit Update: New Opinion in Stone v. Troy Construction, Inc., No. 18-1825 (3d Cir. Aug. 20, 2019) Clarifies (1) the FLSA’s “Willful” Violation Standard and (2) Necessity of Filing Consent-to-Join Form.

During a 10-day stretch August, the Third Circuit Court of Appeals (which covers Pennsylvania, New Jersey, and Delaware) issued three separate opinions addressing the Fair Labor Standards Act (“FLSA”).  Moreover, each opinion is “precedential” and will be published in the Federal Reporter.  Because precedential FLSA opinions are pretty rare in the Third Circuit, this 10-day stretch has created a frenzy of high excitement for FLSA nerds like us.  Here is a summary of the first of the three opinions:

First, in Stone v. Troy Construction, Inc., No. 18-1825 (3d Cir. Aug 20, 2019), the Court provided clarification regarding (1) the legal standard required for an FLSA plaintiff to establish a “willful” violation under the FLSA and (2) the requirement than an FLSA plaintiff affirmatively consent to participate in the lawsuit.

Stone’s first topic – “willfulness” – is important because, under the FLSA, employees generally can recover unpaid wages for a period going backwards two-years from the filing of the complaint.  However, if the FLSA violation is “willful,” the employee can recover for a three-year period.  Some sloppy language in a 2017 opinion entitled Souryavong v. Lackawanna County, 872 F.3d 122 (3d Cir. 2017), had created a lot of confusion by suggesting that an FLSA violation must be “egregious” in order be “willfulness” standard.  In Stone, the Court clarified that “willfulness” does not require “egregiousness.”  Instead, “willfulness” will be found if the employer either “knew” its conduct violated the FLSA or “showed reckless disregard” of a potential FLSA violation.

Stone’s second topic – necessity of a consent form – is extremely important to FLSA lawyers representing workers in FLSA “collective” actions.  The statute of limitations period applicable to an FLSA claim is not tolled until the lawsuit is “commenced.”  29 U.S.C. § 255(a).  When the plaintiff brings the lawsuit on behalf of herself alone, the commencement date is the date on which the complaint is filed in court.  See 29 U.S.C. § 256.  However, when the plaintiff brings a “collective” action lawsuit on behalf of herself and other employees, the commencement date is the date on which she files a “written consent to become a party plaintiff.”  Id.  Thus, because the Stone plaintiff did not file a written consent form until many months after she filed her complaint, the running statute of limitations took a huge bite out of her FLSA claim.  As the Court observed, this highly technical requirement might seem like an “oddity,” but it “is one of the shoals on the FLSA waterway, and parties must navigate accordingly.” -PW

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