29 U.S.C. § 255 — Statute of limitations

Page 114 TITLE 29—LABOR § 255 1 See References in Text note below. mences, or subsequent to the time on any par- ticular workday at which he ceases, such prin- cipal activity or activities. For purposes of this subsection, the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are incidental to the use of such vehicle for commuting shall not be con- sidered part of the employee’s principal activi- ties if the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the em- ployer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee. (b) Compensability by contract or custom Notwithstanding the provisions of subsection (a) which relieve an employer from liability and punishment with respect to any activity, the employer shall not be so relieved if such activity is compensable by either— (1) an express provision of a written or non- written contract in effect, at the time of such activity, between such employee, his agent, or collective-bargaining representative and his employer; or (2) a custom or practice in effect, at the time of such activity, at the establishment or other place where such employee is employed, cov- ering such activity, not inconsistent with a written or nonwritten contract, in effect at the time of such activity, between such em- ployee, his agent, or collective-bargaining rep- resentative and his employer. (c) Restriction on activities compensable under contract or custom For the purposes of subsection (b), an activity shall be considered as compensable under such contract provision or such custom or practice only when it is engaged in during the portion of the day with respect to which it is so made com- pensable. (d) Determination of time employed with respect to activities In the application of the minimum wage and overtime compensation provisions of the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], of the Walsh-Healey Act, or of the Bacon-Davis Act,1 in determining the time for which an employer employs an employee with respect to walking, riding, traveling, or other preliminary or postliminary activities de- scribed in subsection (a) of this section, there shall be counted all that time, but only that time, during which the employee engages in any such activity which is compensable within the meaning of subsections (b) and (c) of this sec- tion. (May 14, 1947, ch. 52, § 4, 61 Stat. 86; Pub. L. 104–188, [title II], § 2102, Aug. 20, 1996, 110 Stat. 1928.) Editorial Notes REFERENCES IN TEXT The Fair Labor Standards Act of 1938, as amended, re- ferred to in subsecs. (a) and (d), is act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chap- ter 8 (§ 201 et seq.) of this title. For complete classifica- tion of this Act to the Code, see section 201 of this title and Tables. The Walsh-Healey and Bacon-Davis Acts, referred to in subsecs. (a) and (d), are defined for purposes of this chapter in section 262 of this title. AMENDMENTS 1996—Subsec. (a). Pub. L. 104–188 in closing provisions inserted at end ‘‘For purposes of this subsection, the use of an employer’s vehicle for travel by an employee and activities performed by an employee which are in- cidental to the use of such vehicle for commuting shall not be considered part of the employee’s principal ac- tivities if the use of such vehicle for travel is within the normal commuting area for the employer’s business or establishment and the use of the employer’s vehicle is subject to an agreement on the part of the employer and the employee or representative of such employee.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–188, [title II], § 2103, Aug. 20, 1996, 110 Stat. 1928, provided that: ‘‘The amendment made by section 2101 [probably means section 2102 of Pub. L. 104–188, amending this section] shall take effect on the date of the enactment of this Act [Aug. 20, 1996] and shall apply in determining the application of section 4 of the Por- tal-to-Portal Act of 1947 [this section] to an employee in any civil action brought before such date of enact- ment but pending on such date.’’ § 255. Statute of limitations Any action commenced on or after May 14, 1947, to enforce any cause of action for unpaid minimum wages, unpaid overtime compensa- tion, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], the Walsh-Healey Act, or the Bacon-Davis Act 1 — (a) if the cause of action accrues on or after May 14, 1947—may be commenced within two years after the cause of action accrued, and every such action shall be forever barred un- less commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued; (b) if the cause of action accrued prior to May 14, 1947—may be commenced within whichever of the following periods is the shorter: (1) two years after the cause of action accrued, or (2) the period prescribed by the ap- plicable State statute of limitations; and, ex- cept as provided in paragraph (c), every such action shall be forever barred unless com- menced within the shorter of such two periods; (c) if the cause of action accrued prior to May 14, 1947, the action shall not be barred by paragraph (b) if it is commenced within one hundred and twenty days after May 14, 1947 unless at the time commenced it is barred by an applicable State statute of limitations; (d) with respect to any cause of action brought under section 216(b) of this title against a State or a political subdivision of a State in a district court of the United States on or before April 18, 1973, the running of the statutory periods of limitation shall be deemed suspended during the period beginning with the commencement of any such action and ending one hundred and eighty days after Page 115 TITLE 29—LABOR § 258 1 See References in Text note below. 1 See References in Text note below. the effective date of the Fair Labor Standards Amendments of 1974, except that such suspen- sion shall not be applicable if in such action judgment has been entered for the defendant on the grounds other than State immunity from Federal jurisdiction. (May 14, 1947, ch. 52, § 6, 61 Stat. 87; Pub. L. 89–601, title VI, § 601(b), Sept. 23, 1966, 80 Stat. 844; Pub. L. 93–259, § 6(d)(2)(A), Apr. 8, 1974, 88 Stat. 61.) Editorial Notes REFERENCES IN TEXT The Fair Labor Standards Act of 1938, as amended, re- ferred to in text, is act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chapter 8 (§ 201 et seq.) of this title. For complete classification of this Act to the Code, see section 201 of this title and Tables. The Walsh-Healey and Bacon-Davis Acts, referred to in text, are defined for purposes of this chapter in sec- tion 262 of this title. The effective date of the Fair Labor Standards Amendments of 1974, referred to in subsec. (d), means May 1, 1974, except as otherwise specifically provided, under provisions of section 29(a) of Pub. L. 93–259, set out as an Effective Date of 1974 Amendment note under section 202 of this title. AMENDMENTS 1974—Subsec. (d). Pub. L. 93–259 added subsec. (d). 1966—Subsec. (a). Pub. L. 89–601 inserted provision al- lowing causes of action arising out of willful violations to be commenced within three years after the cause of action accrued. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93–259 effective May 1, 1974, see section 29(a) of Pub. L. 93–259, set out as a note under section 202 of this title. EFFECTIVE DATE OF 1966 AMENDMENT Amendment by Pub. L. 89–601 effective Feb. 1, 1967, except as otherwise provided, see section 602 of Pub. L. 89–601, set out as a note under section 203 of this title. RULES, REGULATIONS, AND ORDERS PROMULGATED WITH REGARD TO 1966 AMENDMENTS Secretary authorized to promulgate necessary rules, regulations, or orders on and after the date of the en- actment of Pub. L. 89–601, Sept. 23, 1966, with regard to the amendments made by Pub. L. 89–601, see section 602 of Pub. L. 89–601, set out as a note under section 203 of this title. § 256. Determination of commencement of future actions In determining when an action is commenced for the purposes of section 255 of this title, an action commenced on or after May 14, 1947 under the Fair Labor Standards Act of 1938, as amend- ed [29 U.S.C. 201 et seq.], the Walsh-Healey Act, or the Bacon-Davis Act,1 shall be considered to be commenced on the date when the complaint is filed; except that in the case of a collective or class action instituted under the Fair Labor Standards Act of 1938, as amended, or the Bacon- Davis Act,1 it shall be considered to be com- menced in the case of any individual claimant— (a) on the date when the complaint is filed, if he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court in which the action is brought; or (b) if such written consent was not so filed or if his name did not so appear—on the subse- quent date on which such written consent is filed in the court in which the action was com- menced. (May 14, 1947, ch. 52, § 7, 61 Stat. 88.) Editorial Notes REFERENCES IN TEXT The Fair Labor Standards Act of 1938, as amended, re- ferred to in text, is act June 25, 1938, ch. 676, 52 Stat. 1060, which is classified generally to chapter 8 (§ 201 et seq.) of this title. For complete classification of this Act to the Code, see section 201 of this title and Tables. The Walsh-Healey and Bacon-Davis Acts, referred to in text, are defined for purposes of this chapter in sec- tion 262 of this title. § 257. Pending collective and representative ac- tions The statute of limitations prescribed in sec- tion 255(b) of this title shall also be applicable (in the case of a collective or representative ac- tion commenced prior to May 14, 1947 under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.]) to an individual claimant who has not been specifically named as a party plaintiff to the action prior to the expiration of one hundred and twenty days after May 14, 1947. In the application of such statute of limitations such action shall be considered to have been commenced as to him when, and only when, his written consent to become a party plaintiff to the action is filed in the court in which the ac- tion was brought. (May 14, 1947, ch. 52, § 8, 61 Stat. 88.) Editorial Notes REFERENCES IN TEXT The Fair Labor Standards Act of 1938, as amended, re- ferred to in text, is act June 25, 1938, ch. 676, 52 Stat. 1060, as amended, which is classified generally to chap- ter 8 (§ 201 et seq.) of this title. For complete classifica- tion of this Act to the Code, see section 201 of this title and Tables. § 258. Reliance on past administrative rulings, etc. In any action or proceeding commenced prior to or on or after May 14, 1947 based on any act or omission prior to May 14, 1947, no employer shall be subject to any liability or punishment for or on account of the failure of the employer to pay minimum wages or overtime compensa- tion under the Fair Labor Standards Act of 1938, as amended [29 U.S.C. 201 et seq.], the Walsh- Healey Act, or the Bacon-Davis Act,1 if he pleads and proves that the act or omission com- plained of was in good faith in conformity with and in reliance on any administrative regula- tion, order, ruling, approval, or interpretation, of any agency of the United States, or any ad- ministrative practice or enforcement policy of any such agency with respect to the class of em-