©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 75 4. 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. But if a violation is determined to be willful, then a three-year statute of limitations applies.626 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.”627 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,628 an account manager for an online marketing services company alleged, among other things, that she was paid less than a 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.”629 In order to succeed on her claim, plaintiff would have to establish that the statute of limitations should be extended to three years. The Court held that she failed to show willfulness, explaining that plaintiff “points to no evidence in the record in support of her assertion that [employer] willfully violated the EPA.”630 Similarly, in Jones v. Trane US, Inc.,631 a management-level employee alleged, among other things, unequal pay and retaliation. At issue was whether plaintiff’s EPA claim was barred by the statute of limitations because she had received her last paycheck more than two years prior to 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.632 The court then rejected her attempt to show a willful violation. The only proof plaintiff had proffered was the mere fact that a pay disparity existed, and the employer knew about it: “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.”633 5. Maintaining Privilege Of Internal Investigations The onset of litigation is often not the first time an employer hears about an employee’s equal pay allegations. Often an employee will bring their concerns to company personnel before bringing a lawsuit in court. Employers will often investigate such claims, with the goal of correcting any unjustified pay disparities they may find. Many times, however, an employer’s investigation will reveal no evidence of unlawful pay disparities. If the employee rejects the employer’s conclusion and decides to sue, the discoverability of the employer’s investigation file can become an issue in litigation. Employers that are careful to conduct their investigations under the cover of attorney-client privilege usually withhold some or all of their investigation files from production. But even in those cases, employees will sometimes argue 626 29 U.S.C. § 255(a). 627 McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). 628 Cunningham v. Advantix Digital, LLC, No. 3:19-cv-0210-G, 2020 WL 1915693 (N.D. Tex. Apr. 20, 2020). 629 Id. at *14. 630 Id. at *15. 631 Jones v. Trane US, Inc., No. 3:19-cv-0453, 2020 WL 5088211 (M.D. Tenn. Aug. 28, 2020). 632 Id. at *9. See also Black v. State of Ohio Indus. Comm’n, No. 2:21-cv-2987, 2023 WL 5935650 (S.D. Ohio Sept. 12, 2023) (holding that time-barred claims cannot be salvaged by comparing a plaintiff’s entire tenure of employment to that of her successor; one must base a comparison on the time period available for recovery: “Plaintiff argues that her pay during her first several years as Chief Legal Counsel was unequal when compared to [successor’s] pay, but she cannot save the time-barred claim simply by using her successor as the comparator”). 633 Id. at *10.
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