(a) The Portal Act 128 provides a statute of limitations
fixing the time limits within which actions by employees under section
16(b) of the Fair Labor Standards Act 129 may be commenced,
as follows:
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128 See sections 6-8 inclusive.
129 Sponsors of the legislation stated that the time
limitations prescribed therein apply only to the statutory actions,
brought under the special authority contained in section 16(b), in which
liquidated damages may be recovered, and do not purport to affect the
usual application of State statutes of limitation to other actions
brought by employees to recover wages due them under contract, at common
law, or under State statutes. Statements of Representative Gwynne, 93
Cong. Rec. 1491, 1557-1588; colloquy between Representative Robsion,
Vorys, and Celler, 93 Cong. Rec. 1495.
(1) Actions to enforce causes of action accruing on or after May 14,
1947; two years.
(2) Actions to enforce causes of action accruing before May 14,
1947.130 Two years or period prescribed by applicable State
statute of limitations, whichever is shorter.
130 This refers to actions commenced after September 11,
1947. Such actions commenced on or between May 14, 1947 and September
11, 1947 were left subject to State statutes of limitations. As to
collective and representatives actions commenced before May 14, 1947,
section 8 of the Portal Act makes the period of limitations stated in
the text applicable to the filing, by certain individual claimants, of
written consents to become parties plaintiff. See Conference Report, p.
15; Sec. 790.20 of this part.
These are maximum periods for bringing such actions, measured from the
time the employee's cause of action accrues to the time his action is
commenced.131
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131 Conference Report, pp. 13-15.
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(b) The courts have held that a cause of action under the Fair Labor
Standards Act for unpaid minimum wages or unpaid overtime compensation
and for liquidated damages ``accrues'' when the employer fails to pay
the required compensation for any workweek at the regular pay day for
the period in which
the workweek ends.132 The Portal Act 133 provides
that an action to enforce such a cause of action shall be considered to
be ``commenced'':
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132 Reid v. Solar Corp., 69 F. Supp. 626 (N.D. Iowa);
Mid-Continent Petroleum Corp. v. Keen, 157 F. (2d) 310, 316 (C.A. 8).
See also Brooklyn Savings Bank v. O'Neil, 324 U.S. 697; Rigopoulos v.
Kervan, 140 F. (2d) 506 (C.A. 2).
In some instances an employee may receive, as a part of his
compensation, extra payments under incentive or bonus plans, based on
factors which do not permit computation and payment of the sums due for
a particular workweek or pay period until some time after the pay day
for that period. In such cases it would seem that an employee's cause of
action, insofar as it may be based on such payments, would not accrue
until the time when such payment should be made. Cf. Walling v.
Harnischfeger Corp., 325 U.S. 427.
133 Section 7. See also Conference Report, p. 14.
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(1) In individual actions, on the date the complaint is filed;
(2) In collective or class actions, as to an individual claimant.
(i) On the date the complaint is filed, if he is specifically named
therein as a party plaintiff and his written consent to become such is
filed with the court on that date, or
(ii) On the subsequent date when his written consent to become a
party plaintiff is filed in the court, if it was not so filed when the
complaint was filed or if he was not then named therein as a party
plaintiff.134
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134 This is also the rule under section 8 of the Portal Act as
to individual claimants, in collective or representative actions
commenced before May 14, 1947, who were not specifically named as
parties plaintiff on or before September 11, 1947.
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(c) The statute of limitations in the Portal Act is silent as to
whether or not the running of the two-year period of limitations may be
suspended for any cause.135 In this connection, attention is
directed to section 205 of the Soldiers' and Sailors' Civil Relief Act
of 1940,136 as amended, which provides that the period of
military service shall not be included in the period limited by law for
the bringing of an action or proceeding, whether the cause of action
shall have accrued prior to or during the period of such service.
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135 A limited suspension provision was contained in
section 2(d) of the House bill, but was eliminated by the Senate.
Neither the Senate debates, the Senate committee report, nor the
conference committee report, indicate the reason for this. While the
courts have held that in a proper case, a statute of limitations may be
suspended by causes not mentioned in the statute itself (Braun v.
Sauerwein, 10 Wall. 218, 223; see also Richards v. Maryland Ins. Co., 8
Cranch 84, 92; Bauserman v. Blunt, 147 U.S. 647), they have also held
that when the statute has once commenced to run, its operation is not
suspended by a subsequent disability to sue, and that the bar of the
statute cannot be postponed by the failure of the creditor (employee) to
avail himself of any means within his power to prosecute or to preserve
his claim. Bauserman v. Blunt, 147 U.S. 647, 657; Smith v. Continental
Oil Co., 59 F. Supp. 91, 94.
136 Act of October 17, 1940, ch. 888, 54 Stat. 1178, as
amended by the act of October 6, 1942, ch. 581, 56 Stat. 769 (50
U.S.C.A. App. sec. 525).
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