In Knox v. John Varvatos Enterprises, Inc., the Southern District of New York granted a Section 216(b) motion for conditional certification of an Equal Pay Act (“EPA”) collective consisting of female sales associates contending that their employer discriminatorily awarded a $12,000 annual clothing allowance to male employees but not female employees. See No. 17-CIV-772 (GHW) (GWG) (S.D.N.Y. Oct. 17, 2017). However, the Court declined to grant that aspect of the motion that sought equitable tolling of the claims of potential opt-in plaintiffs.

The EPA amended the Fair Labor Standards Act to address the negative effects of wage differentials based on sex. Because the EPA borrows its enforcement mechanism from the FLSA, the Knox Court applied the two-step collective certification procedure first endorsed by the Second Circuit in Myers v. Hertz Corp., 624 F.3d 537 (2d Cir. 2010). The Court found the plaintiff to have met her “modest factual showing” for purposes of conditional certification relying on, most prominently, the employer’s “Dress Policy,” which stated unequivocally that all male employees would receive a clothing allowance.

The Court decided that aspect of the motion that sought equitable tolling of the claims of potential opt-in plaintiffs in favor of the employer. The Court noted that equitable tolling is appropriate only where the movant establishes: (i) that she has been pursuing her rights diligently; and (ii) that some extraordinary circumstance stood in her way. The Court characterized tolling as a “drastic remedy applicable only in rare and exceptional circumstances.” The plaintiff argued that her efforts in pursuing her rights met this standard.

The Court disagreed. The Court held that it is the efforts of the putative opt-in plaintiffs to pursue their rights, rather than the individual plaintiff, that controlled. The Court noted that it had no information before it concerning the efforts of as-yet unidentified opt-in plaintiffs and thus could not rule on the issue. The Court also distinguished cases that granted equitable tolling as a matter of course owing to the delay occasioned by a court in ruling on a motion for conditional certification.

The Court took a similarly strict approach in response to the plaintiff’s request to have notice distributed to female associates who’s employment ended more than three years prior to the filing of the litigation; that is, female associates against whom the statute of limitations had run. The Court concluded that the plaintiff had made no showing that such female associates would be able to demonstrate an entitlement to equitable tolling at a later date. Thus, the Court restricted distribution of the notice to only those female associates who continued working within three years of the filing of the Complaint.

Knox is useful to employers because of its stricter approach to equitable tolling. Motions for conditional certification are often accompanied by a boilerplate request for application of equitable tolling to the claims of potential opt-in plaintiffs. Courts often grant this aspect of the motion as a matter of habit in recognition that the Court’s own delay in deciding the motion might allow otherwise meritorious claims to expire. Knox, however, adhered more closely to Second Circuit precedent and reaffirmed that, despite a wealth of decisions seemingly to the contrary, equitable tolling is a “drastic remedy.” Employers should refer to Knox (and to Contrera v. Langer, No. 16-CIV-3851 (LTS) (GWG) (S.D.N.Y. Oct. 5, 2017), an opinion by the same Magistrate Judge) to limit the potential scope of an EPA (or FLSA) collective.