44 | Developments in Equal Pay Litigation 2025 ©2025 Seyfarth Shaw LLP arguing that the stay would prejudice putative members of the collective action because their claims would continue to waste during the pendency of the stay. But the court noted that this was an argument advanced for the benefit of parties who are not yet in the case; the plaintiffs who were already in the case would suffer no diminishment in their suit because their claims were already tolled. The court refused to consider the rights of absent parties: “Because possible future collective members are not ‘non-moving parties’ to this motion, the Court will not base its determination on speculation about how such unknown individuals might be affected by the stay.”296 The court reasoned that equitable tolling was an extreme and disfavored remedy.297 In order to obtain equitable tolling, a litigant must show that she has been pursuing her rights diligently, but that some extraordinary circumstance stood in her way.298 But it is the person who is seeking the benefit of tolling who must show that; the court held it was impossible for the plaintiffs already in the case to show that for putative plaintiffs who had not yet joined: “In determining whether future putative plaintiffs have diligently pursued their rights, it would make little sense for the Court to consider the diligence of a plaintiff who has already filed suit and is not in need of tolling.”299 Moreover, there is nothing about a stay of discovery that would prevent putative members of the collective action from joining the suit: “Equitable tolling is to be granted rarely, and only in extraordinary circumstances. Plaintiffs have not identified any reason that a stay of discovery will bar any person with a viable EPA claim against Defendants from asserting that claim. Therefore, applying the doctrine of equitable tolling here would render the practice routine.”300 2. Recent Cases Involving Class Action Certification When plaintiffs proceed under state equal pay statutes, they must meet the more rigorous standards applicable to federal Rule 23 class actions or similar state-specific class action requirements. If they can meet those standards, however, they are often rewarded with a much larger class, because those classes are “opt-out” classes rather than “opt-in” classes. Under the collective action mechanism of the EPA, if putative members of the collective action do not opt into the lawsuit, then they are not a part of the collective action. Class actions, on the other hand, automatically include every employee who meets the class definition unless they affirmatively choose to opt out. When combined with the arguably more lenient standards for establishing a prima facie case that are available under some state equal pay statutes, this can provide powerful incentive for plaintiffs to pursue a class action under state law, rather than the federal EPA. The most significant recent development in equal pay class action litigation was the class certification decision issued in a massive equal pay case, Ellis v. Google, Inc.301 In that case, four named plaintiffs brought a class action alleging that their employer had systematically underpaid over ten thousand women employees as compared to men performing the same work. Plaintiffs’ amended complaint narrowed their proposed class to female employees who worked in any of 30 separate positions, which plaintiffs categorized into six job “families.”302 They also alleged that the employer maintained a companywide policy for setting starting salary that included consideration of an employee’s prior salary. According to plaintiffs, that policy perpetuates a historical pay disparity that exists between men and women and 296 Id. at *4 (quoting Physicians Home Health Infusion, P.C. v. UnitedHealthcare of the Midwest, Inc., No. 4:18-cv-01959 PLC, 2019 WL 4644021, at *3 (E.D. Mo. Sept. 24, 2019)). 297 Id. at *6. 298 Id. at *7. 299 Id. 300 Id. at *9. 301 Ellis v. Google, LLC, No. CGC-17-561299, 2021 WL 4169813 (Cal. Super. Ct. May 27, 2021). 302 Am. Compl. ¶¶ 2-3, Ellis v. Google, Inc., No. CGC-17-561299 (Cal. Super. Ct. Jan. 3, 2018). The court initially held that plaintiffs’ class definition was simply too broad in that it failed to allege a common policy or course of conduct applicable to the entire class. Without such a policy, it was impossible to identify class members who had valid claims from those who did not, rendering plaintiffs’ proposed class unascertainable. See Order Sustaining Def. Google Inc.’s Dem. to Pls.’ Class Action Compl. At 4, Ellis v. Google, Inc., No. CGC-17-561299 (Cal. Super. Ct. Dec. 4, 2017).
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