Continuing violation theory does not apply to FLSA claim for overtime.
The plaintiff was employed by the Board of Education as a part-time occupational therapist. She asserted that during her eight years of employment, she regularly worked overtime in order to fulfill her job requirements. In limiting the claim, the court noted that the statute of limitations under the FLSA is two years from the date of accrual of the cause of action or three years if the violation is shown to be willful. The accrual of the cause of action is the issuance of each pay check. In rejecting the plaintiff's attempt to seek overtime for her entire period of employment premised upon a claim of a "continuing violation," the court held that the continuing violation theory, while allowed in pay discrimination claims, is inapplicable to overtime claims under the FLSA.
Case Law Alert - 2nd Qtr 2012