The most recent filing states, “Beyond being unaware, most of these employees have been misinformed about their rights by defendants communications. This group of employees were misinformed by their employers that they were “salaried” thus this group was/is operating under the misconception of full wage payment, created by defendants’ wrongful information. Defendants’ misinformation is made stronger, as most of the employees are low wage, unsophisticated workers, living under the defendants’ roof, thus these employees are much more susceptible to defendants’ false claims of being “salaried.” Tolling will also allow the court to Rule on the Pending Motions to Dismiss, and the potential Collective Members claims will not continue to run/expire, while the Court rules on these Motions.

“Defendants’ spider’s web of corporations (creating a web of representations and a multitude of Motions), refusal to agree to sending of the FLSA Notice and refusal to toll the ‘interim period’ requires the Plaintiffs to file the present motion. The Defendants’ Motions, actions and inactions are ‘extraordinary circumstances,’ as understood by courts in FLSA cases, as these factors undoubtedly delay notification of putative opt-in plaintiffs of their opportunity to join in this action and cause them to lose rights because the statute of limitations have been running since the Motion for Collective was filed on March 1, 2017.”

Defendants response 

Welcome Inn defendants claim in their most recent filing that in order to qualify for equitable tolling, the potential opt-ins must satisfy two elements. First, they must have diligently pursued their right and second, they must identify an extraordinary circumstance that acted as an impediment so as to prevent their timely filing of a separate FLSA suit or a timely opt-in notice in this case.

The defendants argue that the plaintiffs failed to make the case for equitable tolling.

In other FLSA collective actions, many district courts have tolled the running of the limitations period for a number of reasons, including where delay is predicated on a Defendants Motions to Dismiss. Here, clearly the delay is clearly placed in the hands of the defendants. Defendants have filed a stack of motions.

Most defendants’ motions are questionable, for example, Motions for More Specific Statement are normally reserved for complaints by Pro Se Plaintiffs, who generally file jumbled, confusing and/or unsupported complaints. Here Plaintiffs filed detailed, fact-filled and ably supported complaints, attaching and incorporating defendants own business documents as substantial exhibits. Despite these strong well-drafted pleadings defendants claim, without any real argument as to how defendants are ‘confused’ by the Complaint. Motions for More Specific Statements are considered narrowly and with disfavor.

The defendants argue that the plaintiffs have offered no allegations or proof from which the court can conclude that a reasonable prudent potential plaintiff would not have known of his or her right to receive overtime pay after 40 hours.

Court documents also show that the defendants stated the plaintiffs failed to present any facts suggesting any punitive members of the FLSA collective action have been diligent. “The noted gap of information is understandable as the potential opt-ins are not yet before the court. Plaintiffs have not even discussed their circumstances. As a result, there are no grounds to find that the punitive opt-ins have not been free to file their own FLSA wage and/or lawsuits if they so preferred, or to file opt-in notices before the court rules on the plaintiffs’ FLSA conditional certification motion.”

The defendants claim the plaintiffs filed their motion prematurely and argued that the court has insufficient information about the potential class members to determine if they were reasonably diligent.

There have been no decisions made in the case. The plaintiffs are seeking an unspecified amount in lost wages and attorney fees.  The case is being heard by U.S. Magistrate Judge Tom Schanzle-Haskins.