Developments In Equal Pay Litigation - 2022 Update

58 | Developments in Equal Pay Litigation © 2022 Seyfarth Shaw LLP 5. Statute Of Limitations And Willfulness Issues The normal statute of limitations for a violation of the FLSA, including a violation of the EPA, is two years. 503 But if a violation is determined to be willful, then a three-year statute of limitations applies. 504 The standard for willfulness under the FLSA is “that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” 505 It is a plaintiff’s burden to establish willfulness, and it is usually the jury that must make that determination. But where the facts are undisputed, a court can make the willfulness determination at summary judgment. And although this issue is usually about the extent, rather than the existence, of liability, there are some occasions when timing issues are especially critical, and the willfulness issue can actually decide the outcome of a case. For example, in Cunningham v. Advantix Digital, LLC , 506 an account manager for an online marketing services company alleged, among other things, that she was paid less than male account managers, including one comparator who was hired around the same time as her, but who had been terminated several years prior. This gave rise to a statute of limitations issue because, as the Court noted, “the last time that the plaintiff was affected by the allegedly discriminatory pay differential between [plaintiff] and [comparator] was in November of 2016 when [comparator] was terminated, . . . and the plaintiff did not file this suit until more than two years later, on January 25, 2019.” 507 In order to succeed on her claim with respect to her chosen comparator, therefore, the court held that plaintiff would have to establish that the employer’s alleged violation was willful so that the statute of limitations would be extended from two years to three. The Court held that she failed to do so, explaining that plaintiff “points to no evidence in the record in support of her assertion that [employer] willfully violated the EPA.” 508 Accordingly, the Court granted summary judgment to the employer on that claim. Similarly, in Jones v. Trane US, Inc. , 509 a management-level employee at a manufacturing plant alleged, among other things, that she was given unequal pay as compared to a male employee and that she was retaliated against due to her complaints about discrimination. 510 At issue was whether plaintiff’s EPA claim was barred by the statute of limitations because she had received her last paycheck from the defendant employer more than two years prior to when she filed her lawsuit. The court first held that neither the filing of an earlier informal complaint, nor filing a charge of discrimination with the EEOC constitutes the filing of a legal claim for purposes of the statute of limitations. 511 The court then rejected her attempt to rely on the extended, three-year statute of limitations for claims that involve willful violations of the EPA. The only proof that plaintiff had proffered regarding willfulness was the mere fact that a pay disparity existed and that the employer knew about it. The court held that this was insufficient: “for a claim to fall into the category of a willful violation there must be something more than proof of merely a violation of the EPA.” 512 503 29 U.S.C. § 255(a). 504 Id. 505 McLaughlin v. Richland Shoe Co ., 486 U.S. 128, 133 (1988). 506 Cunningham v. Advantix Digital, LLC , No. 3:19-cv-0210-G, 2020 WL 1915693 (N.D. Tex. Apr. 20, 2020). 507 Id. at *14. 508 Id. at *15. 509 Jones v. Trane US, Inc. , No. 3:19-cv-0453, 2020 WL 5088211 (M.D. Tenn. Aug. 28, 2020). 510 Id. at *1. 511 Id. at *9. 512 Id. at *10.