Retaining Lawyer Negates Equitable Tolling

Joe Patraker alleged that he regularly worked overtime without compensation. After many years of employment, he retained a lawyer to review a proposed employment contract tendered by her employer. Throughout his employment, his employer failed to post the required FLSA poster informing employees of their right to overtime pay. Patraker sued seeking recovery of his unpaid overtime.

An initial question for the court was whether the statute of limitations on Patraker's FLSA claim would be equitably tolled due to the employer's failure to post the required posting. The court acknowledged that equitable tolling could be appropriate in such circumstances. The court here, however, declined to toll the statute of limitations. First, the court noted that there was no affirmative effort by the employer to deceive Patraker regarding his overtime and FLSA rights. The court also found that Patraker's retention of counsel for a distinct purpose, namely the negotiation of an employment contract, further supported the denial of equitable tolling. “Once the plaintiff hired a lawyer to advise him concerning his employment situation, the means of knowledge of his rights were at his disposal. Surely he knew that he had been working more than 40 hours a week for over 15 years. If he failed to ask the attorney his rights in that circumstance, he cannot be said to have acted with due diligence.” On this basis, the court dismissed Patraker's FLSA claim as untimely.