Section 790.21 - Time for bringing employee suits(a) The Portal Act provides a statute of limitations fixing the time limits within which actions by employees under section 16(b) of the Fair Labor Standards Act may be commenced, as follows: (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. Two years or period prescribed by applicable State statute of limitations, whichever is shorter. 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.
Conference Report, pp. 13-15.
(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. The Portal Act provides that an action to enforce such a cause of action shall be considered to be "commenced":(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.(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. In this connection, attention is directed to section 205 of the Soldiers' and Sailors' Civil Relief Act of 1940, 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. 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 .