IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI TIMOTHY WOODS, ET AL. On Behalf of Themselves And All Others Similarly Situated, Plaintiffs, v. CAREMARK PHC, L.L.C. d/b/a CVS CAREMARK CORPORATION And CAREMARK, L.L.C., And CVS HEALTH CORPORATION,
Defendants.
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Case No: 4:14-CV-00583-SRB
SECOND AMENDED CLASS ACTION COMPLAINT This Second Amended Complaint follows the transfer of a related case filed in the United States District Court for the Western District of Texas.1 Through this Second Amended Complaint, Plaintiffs seek to add the Defendant from the Siegel case (CVS Health Corporation) as a named Defendant here. In addition, this Complaint adds four additional plaintiffs from four different states with corresponding Rule 23 claims on behalf of potential class members located in each of their respective states. Plaintiffs, individually and on behalf of all others similarly situated, by and through their counsel, for their Second Amended Complaint against Defendant Caremark PHC L.L.C., d/b/a 1
The case captioned Susan Siegel v. CVS Health Corporation, 5:15-cv-00871-OLG (WD TX 2015) was transferred to this Court and by agreement of the parties was dismissed so that the cases could be informally consolidated. 1 Case 4:14-cv-00583-SRB Document 142 Filed 08/02/16 Page 1 of 24
CVS Caremark, Inc. (“Caremark PHC”), Defendant Caremark L.L.C., and Defendant CVS Health Corporation (collectively referred to herein as “Defendants” and/or “CVS”), hereby state and allege as follows: 1.
CVS is the largest pharmacy health care provider in the United States with net
revenues of approximately $127 billion. 2.
CVS employs approximately 200,000 employees nationwide. These employees
make up CVS’s largest cost outside of inventory including prescriptions. 3.
Defendants’ policy and practice is to deny earned wages and overtime pay to its
telephone-dedicated hourly employees at its call center facilities. Defendants’ deliberate failure to pay call center employees their earned wages and overtime compensation violates the Fair Labor Standards Act (“FLSA”). 4.
Plaintiffs work as call center employees at Defendants’ call centers in various
locations throughout the nation. 5.
This lawsuit is brought as a collective action under the FLSA to recover unpaid
wages owed to Plaintiffs and all other similarly situated workers employed in Defendants’ call centers nationwide. 6.
In addition, Plaintiffs bring this action as a Rule 23 Class Action on behalf of
various state-specific classes. 7.
The United States Supreme Court has held that, among other things, preparatory
work duties that are integral and indispensable to the principal work activity are compensable under the FLSA. See IBP, Inc. v. Alvarez, 126 S. Ct. 514 (2005). 8.
Plaintiffs and similarly situated employees engage in numerous preparatory
activities, as well as related work activities, performed at the beginning of the work day that are
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integral and indispensable for them to perform their duties. It is Defendants’ policy and practice not to pay Plaintiffs, and all other similarly situated call center employees for their work time and, consequently, Plaintiffs, and all other similarly situated call center employees are consistently working “off the clock” and without pay. Accordingly, under the holding of Alvarez, as well as under consistent rulings and interpretations of the United States Department of Labor, Plaintiffs and all similarly situated employees are entitled to compensation for the time during the continuous work day. JURISDICTION AND VENUE 9.
The FLSA authorizes court actions by private parties to recover damages for
violation of the FLSA’s wage and hour provisions. Jurisdiction over Plaintiffs’ FLSA claims is based upon 29 U.S.C. § 216(b) and 28 U.S.C. § 1331. 10.
This Court has jurisdiction over Plaintiffs’ state law claims pursuant to: (1) 28
U.S.C. § 1332(a) because the state claims are so related to the FLSA claims that they form part of the same case or controversy, (2) 28 U.S.C. § 1332(d), and/or (3) 28 U.S.C § 1367. 11.
Venue in this district is proper pursuant to 28 U.S.C. § 1391(b) and (c), because a
substantial part of the events giving rise to the claims occurred in this jurisdiction. PARTIES 12.
Defendant Caremark PHC is a Delaware corporation with its principal place of
business in Rhode Island. Defendant Caremark PHC does business in the State of Missouri and nationwide. 13.
Upon information and belief, Defendant Caremark L.L.C. is a California
corporation with its principal place of business in California. Defendant Caremark L.L.C. does business in the State of Missouri and other states.
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14.
Defendant Caremark PHC has claimed that the proper Defendant is Caremark
L.L.C.. Upon confirmatory discovery that Caremark, L.L.C. was the employer of the Plaintiffs and the putative class members during the entire class period, Plaintiffs will dismiss Defendant Caremark PHC, L.L.C. 15.
Defendant CVS Health Corporation is a Delaware Corporation with its principal
place of business in Rhode Island. Defendant CVS Health Corporation does business in the state of Missouri and nationwide. 16.
Plaintiff Timothy Woods worked as a Customer Care Representative (“CCR�) in
Missouri and is a resident of Pleasant Hill, Missouri. 17.
Plaintiff Kimberly Gibson worked as a CCR in Missouri and is a resident of
Independence, Missouri. 18.
Plaintiff Marta Hulseberg worked as a CCR in Illinois and is a resident of Mount
Prospect, Illinois. 19.
Plaintiff Ramon Ogden worked as a CCR in Pennsylvania and is a resident of
Beaver Falls, Pennsylvania. 20.
Plaintiff Alyssa Viau worked as a CCR in Rhode Island and is a resident of
Danielson, Connecticut. 21.
Plaintiff Anita Johnson worked as a CCR in Tennessee and is a resident of
Nashville, Tennessee. COVERAGE 22.
At all material times, Defendants have acted, directly or indirectly, in the interest
of an employer or joint employer with respect to Plaintiffs, the FLSA Class Members, and the respective Rule 23 Class Members under the FLSA and State Wage Law.
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23.
At all times hereinafter mentioned, Defendants have been the employer within the
meaning of the Section 3(d) of the FLSA, 29 U.S.C. § 203(d), Mo. Rev. Stat. § 290.500(4), 820 Ill. Comp Stat. 105/3, 43 Pa. Stat. Ann. § 333.103(g) and §260.2a, and R.I. Gen. Laws § 28-122(6). At all times hereinafter mentioned, Defendants have been an enterprise within the meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r). 24.
At all times hereinafter mentioned, Defendants have been an enterprise engaged
in commerce or in the production of goods for commerce within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said enterprise has had employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person and in that said enterprise have had and has an annual gross volume of sales made or business done of not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated). 25.
At all times hereinafter mentioned, Plaintiffs and Class Members were individual
employees who were engaged in commerce or in the production of goods for commerce as required by 29 U.S.C. §§ 206-207. Respective Plaintiffs and the respective Rule 23 Class Members were employees of Defendants as those terms are defined under Mo. Rev. Stat.§ 290.500(3), 820 Ill. Comp. Stat. 105/3, 43 Pa. Stat. Ann. § 333.103(h), and R.I. Gen. Laws § 2812-2(5). GENERAL ALLEGATIONS 26.
Defendants operate call centers in numerous states across the country.
27.
The principal job duty of Defendants’ telephone-dedicated call center employees
is to take calls from or make calls to existing customers in order to provide customer service. The
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customer service provided by Defendants’ call center employees includes activating or updating accounts, assisting with billing inquiries, addressing billing, credit and collection issues and handling pharmacy insurance issues for insureds of numerous insurance companies and the government. 28.
Defendants pay Plaintiffs and their other call center employees on an hourly basis,
and classify Plaintiffs and other call center employees as “non-exempt” under the FLSA. The majority of Defendants’ call center workers are full-time employees scheduled to work 40-hours per week. 29.
Defendants’ call center employees are not allowed to accurately record all the
time they work. According to Defendants’ policy, telephone-dedicated call center employees must be ready to take or make a call at the beginning of their scheduled shift. A number of critical tasks must be performed before a call center employee is ready to take a call from or make a call to a customer. These tasks include, but are not limited to: (1) logging on to a computer; (2) logging on to Defendants’ network; (3) opening relevant computer programs and software applications; (4) reviewing memoranda and e-mail; (5) summarizing notes from previous telephone calls; and (6) completing other essential tasks. In accordance with Defendants’ policy, call center employees are required, or encouraged to, complete these essential tasks after their continuous work day has started (or to start the work day) and before the end of their continuous work day (or to end the work day), but they do so without being paid for this work. 30.
Call center employees are not permitted to, or encouraged not to, clock in until
they are ready to take or make their first call of the day. Because Defendants’ policy is to record only the time when call center employees are ready to take or make calls, they do not pay their
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call center employees for all the integral and indispensable tasks that are necessary for telephonededicated employees to assist CVS’s customers. 31.
Defendants could easily and accurately record the actual time call center
employees spend working, for example, by placing a time clock at the door of the call center. Defendants adhere to the same policy and practice with respect to call center employees at all of their call centers nationwide. 32.
Defendants’ policy and practice fails to pay overtime compensation and willfully
fails to keep accurate time records. Defendants enjoy ill-gained profits at the expense of its hourly employees. COLLECTIVE AND CLASS ACTION ALLEGATIONS 33.
Plaintiffs reassert and re-allege the allegations set forth in paragraphs 1 through
32 above. 34.
Plaintiffs brings Count I, the FLSA claim, as an “opt-in” collective action
pursuant to 29 U.S.C. § 216(b) defined as follows: all current and former hourly, non-exempt CVS telephone-dedicated customer service employees who worked at Defendants’ call centers during the last three (3) years within the United States. 35.
The FLSA claim may be pursued by those who opt-in to this case, pursuant to 29
U.S.C. § 216(b). 36.
Plaintiffs, individually and on behalf of all other similarly situated employees,
seek relief on a collective basis challenging, among other FLSA violations, Defendants’ practice of failing to accurately record all hours worked and failing to pay employees for all hours worked, including overtime compensation. The number and identity of other plaintiffs yet to opt-
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in and consent to be party plaintiffs may be determined from the records of Defendants, and potential class members may easily and quickly be notified of the pendency of this action. 37.
Furthermore, Plaintiff Timothy Woods and Plaintiff Kimberly Gibson
(collectively referred to herein as “Class Representatives”) bring Counts II and III, the Missouri state law claims, as a class action pursuant to Federal Rule of Civil Procedure 23, on behalf of themselves and as representatives of the following persons: all current and former hourly, non-exempt CVS telephone-dedicated customer service employees who worked at Defendants’ call centers during the last two (2) years within the state of Missouri. 38.
Plaintiff Marta Hulseberg brings Count IV, the Illinois state law claim, as a class
action pursuant to Federal Rule of Civil Procedure 23, on behalf of herself and as a representative of the following persons: all current and former hourly, non-exempt CVS telephone-dedicated customer service employees who worked at Defendants’ call centers during the last three (3) years within the state of Illinois. 39.
Plaintiff Ramon Ogden brings Count V, the Pennsylvania state law claim, as a
class action pursuant to Federal Rule of Civil Procedure Rule 23, on behalf of himself and as a representative of the following persons: all current and former hourly, non-exempt CVS telephone-dedicated customer service employees who worked at Defendants’ call centers during the last three (3) years within the state of Pennsylvania. 40.
Plaintiff Alyssa Viau brings Count VI, the Rhode Island state law claim, as a class
action pursuant to Federal Rule of Civil Procedure Rule 23, on behalf of herself and as a representative of the following persons: all current and former hourly, non-exempt CVS telephone-dedicated customer service employees who worked at Defendants’ call centers during the last three (3) years within the state of Rhode Island.
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41.
Plaintiff Anita Johnson brings Count VII, the Tennessee state law claim, as a class
action pursuant to Federal Rule of Civil Procedure Rule 23, on behalf of herself and as a representative of the following persons: all current and former hourly, non-exempt CVS telephone-dedicated customer service employees who worked at Defendants’ call centers during the last six (6) years within the state of Tennessee. 42.
There are common questions of fact and law as to the classes which predominate
over any questions affecting only individual class members. The questions of law and fact common to the classes arising from Defendants’ actions include, without limitation, the following: a.
Whether Plaintiffs and all similarly situated individuals are compensated for all preparatory, concluding, and other work-related activities;
b.
Whether Defendants’ compensation policy and practice accounts for the time Plaintiffs and all similarly situated individuals are actually working;
c.
Whether Defendants willfully violated state and federal wage and hour law.
43.
The questions set forth above predominate over any questions that affect
individual persons, and a class action is superior with respect to consideration of consistency, economy, efficiency, fairness and equity, to other available methods for the fair and efficient adjudication of the state law claims. 44.
The Class Representatives’ claims are typical of those of the classes, in that class
members have been employed in the same or similar positions as the named Class Representatives and were subject to the same or similar unlawful practices as the named Class Representatives.
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45.
A class action is the appropriate method for the fair and efficient adjudication of
this controversy. Defendants have acted or refused to act on grounds generally applicable to the classes. The presentation of separate actions by individual class members could create inconsistent and varying adjudications, establish incompatible standards of conduct for Defendants, and/or substantially impair or impede the ability of class members to protect their interests. 46.
Class Representatives are adequate representatives of the classes because they are
members of the respective classes and their interests do not conflict with the interests of the other members of the classes they seek to represent. The interests of the members of the classes will be fairly and adequately protected by the Class Representatives and the undersigned counsel, who have extensive experience prosecuting complex wage and hour, employment and class action litigation. 47.
Maintenance of these claims as a class action is a fair and efficient method for the
adjudication of this controversy. It would be impracticable and undesirable for each member of the classes who suffered harm to bring a separate action. In addition, the maintenance of separate actions would place a substantial and unnecessary burden on the courts and could result in inconsistent adjudications, while a single class action can determine, with judicial economy, the rights of all class members. COUNT I Violation of the Fair Labor Standards Act of 1938 (Brought Against Defendants by Plaintiffs Individually and on Behalf of All Others Similarly Situated) 48.
Plaintiffs reassert and re-allege the allegations set forth in paragraphs 1 through
47 above.
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49.
At all times material herein, Plaintiffs have been entitled to the rights, protections,
and benefits provided under the FLSA, 29 U.S.C. §§ 201, et seq. 50.
The FLSA regulates, among other things, the payment of overtime pay by
employers whose employees are engaged in interstate commerce, or engaged in the production of goods for commerce, or employed in an enterprise engaged in commerce or in the production of goods for commerce. 29 U.S.C. § 207(a)(1). 51.
Defendants are subject to the overtime pay requirements of the FLSA because
they are an enterprise engaged in interstate commerce and their employees are engaged in commerce. 52.
Defendants violated the FLSA by failing to pay for overtime. In the course of
perpetrating these unlawful practices, Defendants have also willfully failed to keep accurate records of all hours worked by their employees. 53.
Section 13 of the FLSA, codified at 29 U.S.C. § 213, exempts certain categories
of employees from overtime pay obligations. None of the FLSA exemptions apply to Plaintiffs or call center employees. 54.
Plaintiffs, and all similarly situated employees, are victims of a uniform and
facility-wide compensation policy. This uniform policy, in violation of the FLSA, has been applied to all call center employees in Defendants’ call centers, located nationwide. 55.
Plaintiffs and all similarly situated employees are entitled to damages equal to the
mandated overtime premium pay within the three years preceding the filing of this Complaint, plus periods of equitable tolling, because Defendants acted willfully and knew, or showed reckless disregard of whether their conduct was prohibited by the FLSA.
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56.
Defendants have acted neither in good faith nor with reasonable grounds to
believe that their actions and omissions were not a violation of the FLSA, and as a result thereof, Plaintiffs and other similarly situated employees are entitled to recover an award of liquidated damages in an amount equal to the amount of unpaid overtime pay described pursuant to Section 16(b) of the FLSA, codified at 29 U.S.C. § 216(b). Alternatively, should the Court find Defendants did not act willfully in failing to pay overtime pay, Plaintiffs and all similarly situated employees are entitled to an award of prejudgment interest at the applicable legal rate. 57.
As a result of the aforesaid willful violations of the FLSA’s overtime pay
provisions, overtime compensation has been unlawfully withheld by Defendants from Plaintiffs and all similarly situated employees. Accordingly, Defendants are liable pursuant to 29 U.S.C. § 216(b), together with an additional amount as liquidated damages, pre-judgment and postjudgment interest, reasonable attorneys’ fees, and costs of this action. WHEREFORE, Plaintiffs and all similarly-situated employees demand judgment against Defendants and pray for: (1) compensatory damages; (2) liquidated damages; (3) attorneys’ fees and costs as allowed by Section 16(b) of the FLSA; (4) pre-judgment and post-judgment interest as provided by law; (5) notice to be sent to all eligible employees of their right to participate in this case; (6) a declaration that Defendants’ policy violates the FLSA; (7) corrective notice; and (8) such other relief as the Court deems fair and equitable. COUNT II FAILURE TO PAY WAGES PURSUANT TO MO. REV. STAT. § 290.500, et. seq. (Brought Against Defendants by Plaintiffs Timothy Woods and Kimberly Gibson Individually and on Behalf of a Missouri Rule 23 sub-class) 58.
Plaintiffs incorporate and re-allege the foregoing paragraphs 1 through 57 as if
fully set forth herein. 12 Case 4:14-cv-00583-SRB Document 142 Filed 08/02/16 Page 12 of 24
59.
This Count is brought on behalf of Plaintiffs Timothy Woods and Kimberly
Gibson on behalf of themselves and as representatives of a class of similarly situated individuals who worked at CVS locations in Missouri. 60.
Plaintiffs and the Missouri Class were employed by Defendants and were required
to perform integral and indispensable work activities without pay, including overtime pay. 61.
Said work often required Plaintiffs and the Missouri Class members to work in
excess of forty (40) hours per week. 62.
Plaintiffs and the Missouri Class were treated as non-exempt employees by the
Defendants under the Missouri wage statutes. 63.
The Missouri wage laws require each covered employer, such as Defendants, to
compensate all non-exempt employees for services performed at the proper rate of pay and to compensate them at a rate of not less than one and one-half times the regular rate of pay for work performed in excess of forty hours in a work week. 64.
All similarly situated employees working for Defendants are similarly situated in
that they were subject to the same policy that did not compensate for all integral and indispensable work activities performed during the continuous workday. 65.
These employees are similarly situated in that they are all subject to Defendants’
identical compensation policies and plan that fails to lawfully compensate them. 66.
The names and addresses of the Missouri Class members are available from
Defendants. Defendants failed to compensate Plaintiffs and the Missouri Class members at the proper rate of pay, and therefore, Defendants have violated, and continue to violate, the Missouri wage laws, Mo. Rev. Stat. 290.500, et. seq., including 8 C.S.R. 30-4.010 and 8 C.S.R. 30-4.020 (2).
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67.
The Plaintiffs, on behalf of themselves and all similarly situated employees of
Defendants, seek damages in the amount of all respective unpaid straight time and overtime compensations at a rate of one and one-half times the proper and legal rate of pay for work performed in excess of forty hours in a work week, plus liquidated damages, as provided by the Missouri Minimum Wage Maximum Hours Laws and such other legal and equitable relief as the Court deems just and proper. 68.
The Plaintiffs, on behalf of themselves and all similarly situated employees of
Defendants, seeks recovery of all attorney fees, costs, and expenses of this action, to be paid by Defendants, as provided by Mo. Rev. Stat. 290.500, et. seq. COUNT III UNJUST ENRICHMENT PURSUANT TO MISSOURI COMMON LAW (Brought Against Defendants by Plaintiffs Timothy Woods and Kimberly Gibson Individually and on Behalf of a Missouri Rule 23 sub-class) 69.
Plaintiffs incorporate and re-allege the foregoing paragraphs 1 through 68 as if
fully set forth herein. 70.
This Count is brought on behalf of Plaintiffs Timothy Woods and Kimberly
Gibson on behalf of themselves and as representatives of a class of similarly situated individuals who worked at CVS locations in Missouri. 71.
Defendants have benefitted and were enriched by making deficient payments for
work performed by Plaintiffs and members of the Missouri Class. 72.
Defendants have benefitted and were enriched at the expense of Plaintiffs and the
Missouri Class members because Defendants wrongfully obtained and withheld wages earned by Plaintiffs and the Missouri Class members. 73.
Defendants have retained the benefit of making deficient payments for work
performed by Plaintiffs and the Missouri Class members and Defendants continue to retain the 14 Case 4:14-cv-00583-SRB Document 142 Filed 08/02/16 Page 14 of 24
benefit. 74.
Defendants intentionally refused to pay Plaintiffs and the Missouri Class members
at the proper rate for all hours worked in a scheme to reduce their labor costs. 75.
Defendants know or should know the proper rate of pay for Plaintiffs and the
Missouri Class members. Such wrongful conduct demonstrates bad faith on the part of Defendants. 76.
It is unjust for Defendants to retain the benefits from the unpaid work performed
by Plaintiffs and the Missouri Class members. 77.
Equity and good conscience require restitution to Plaintiffs and the Missouri Class
members for all time spent performing unpaid work. Plaintiffs and the Missouri Class Members have been wrongfully deprived of their money and are entitled to restitution. COUNT IV FAILURE TO PAY WAGES PURSUANT TO 820 ILCS ยง 105/1, et. seq. (Brought Against Defendants by Plaintiff Marta Hulseberg Individually and on Behalf of an Illinois Rule 23 sub-class) 78.
Plaintiffs incorporate and re-allege the foregoing paragraphs 1 through 77 as if
fully set forth herein. 79.
This Count is brought by Marta Hulseberg on behalf of herself and as a
representative of a class of similarly situated individuals who worked at CVS locations in Illinois. 80.
Plaintiff Hulseberg and the Illinois class were employed by Defendants and were
required to perform integral and indispensable work activities without pay, including overtime pay. 81.
Said work often required Plaintiff Hulseberg and the Illinois Class members to
work in excess of forty (40) hours per week. 15 Case 4:14-cv-00583-SRB Document 142 Filed 08/02/16 Page 15 of 24
82.
Plaintiff Hulseberg and the Illinois Class members were treated as non-exempt
employees by the Defendants under the Illinois wage statutes. 83.
The Illinois wage laws require each covered employer, such as Defendants, to
compensate all non-exempt employees for services performed at the proper rate of pay and to compensate them at a rate of not less than one and one-half times the regular rate of pay for work performed in excess of forty hours in a work week. 84.
All similarly situated employees working for Defendants are similarly situated in
that they were subject to the same policy that did not compensate for all integral and indispensable work activities performed during the continuous workday. 85.
These employees are similarly situated in that they are all subject to Defendants’
identical compensation policies and plan that fails to lawfully compensate them. 86.
This Petition is brought and maintained as a class action for the Illinois state law
claims asserted by Plaintiff Hulseberg because her claims are similar to the claims of the Illinois Class members. 87.
The names and addresses of the Illinois Class members are available from
Defendants. Defendants failed to compensate Plaintiff Hulseberg and the Illinois Class members at the proper rate of pay, and therefore, Defendants have violated, and continue to violate, the Illinois wage laws, 820 ILCS § 105/1 et seq. 88.
Plaintiff Hulseberg, on behalf of herself and all similarly situated employees of
Defendants, seeks damages in the amount of all respective unpaid straight time and overtime compensations at a rate of one and one-half times the proper and legal rate of pay for work performed in excess of forty hours in a work week, plus damages of two percent per month for each month from the date of the non-payment, as provided by the Illinois Wage Laws and such
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other legal and equitable relief as the Court deems just and proper. 89.
Plaintiff Hulseberg, on behalf of herself and all similarly situated employees of
Defendants, seeks recovery of all attorney fees, costs, and expenses of this action, to be paid by Defendants, as provided by 820 ILCS ยง 105/12(a). COUNT V FAILURE TO PAY WAGES PURSUANT TO 43 Pa. Stat. Ann. ยง 333.101, et seq. & ยง 260.1, et seq. (Brought Against Defendants by Plaintiff Roman Ogden Individually and on Behalf of a Pennsylvania Rule 23 sub-class) 90.
Plaintiffs incorporate and re-allege the foregoing paragraphs 1 through 89 as if
fully set forth herein. 91.
This Count is brought by Roman Ogden on behalf of himself and as a
representative of a class of similarly situated individuals who worked at CVS locations in Pennsylvania. 92.
Plaintiff Ogden and the Pennsylvania Class were employed by Defendants and
were required to perform integral and indispensable work activities without pay, including overtime pay. 93.
Said work often required Plaintiff Ogden and the Pennsylvania Class to work in
excess of forty (40) hours per week. 94.
Plaintiff Ogden and the Pennsylvania Class were treated as non-exempt
employees by the Defendants under the Pennsylvania wage statutes. 95.
The Pennsylvania wage laws require each covered employer, such as Defendants,
to compensate all non-exempt employees for services performed at the proper rate of pay and to compensate them at a rate of not less than one and one-half times the regular rate of pay for work performed in excess of forty hours in a work week. 43 Pa. Stat. Ann. ยง 333.104; 34 Pa. Code ยง
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231.41. 96.
All similarly situated employees working for Defendants are similarly situated in
that they were subject to the same policy that did not compensate for all integral and indispensable work activities performed during the continuous workday. 97.
These employees are similarly situated in that they are all subject to Defendants’
identical compensation policies and plan that fails to lawfully compensate them. 98.
This Petition is brought and maintained as a class action for all Pennsylvania state
law claims asserted by Plaintiff Ogden because his claims are similar to the claims of the Pennsylvania Class members. 99.
The names and addresses of the Pennsylvania Class members are available from
Defendants. Defendants failed to compensate Plaintiff Ogden and the Pennsylvania Class members at the proper rate of pay, and therefore, Defendants have violated, and continue to violate, the Pennsylvania wage laws, 43 Pa. Stat. Ann. § 333.101, et seq. & §260.1, et seq. 100.
Plaintiff Ogden, on behalf of himself and all similarly situated employees of
Defendants, seeks damages in the amount of all respective unpaid straight time and overtime compensations at a rate of one and one-half times the proper and legal rate of pay for work performed in excess of forty hours in a work week, plus liquidated damages constituting the greater of 25 percent of total wages due or $500, as provided by the Pennsylvania Wage Laws and such other legal and equitable relief as the Court deems just and proper. 43 Pa. Stat. Ann. § 260.10. 101.
Plaintiff Ogden, on behalf of himself and all similarly situated employees of
Defendants, seeks recovery of all attorney fees, costs, and expenses of this action, to be paid by Defendants, as provided by 43 Pa. Stat. Ann. § 333.101, et seq. & §260.1, et seq.
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COUNT VI FAILURE TO PAY WAGES PURSUANT TO R.I. Gen Laws §28-12-1, et seq. & 28-14-1, et seq. (Brought Against Defendants by Plaintiff Allysa Viau Individually and on Behalf of a Rhode Island Rule 23 sub-class) 102.
Plaintiffs incorporate and re-allege the foregoing paragraphs 1 through 101 as if
fully set forth herein. 103.
This Count is brought by Alyssa Viau on behalf of herself and as a representative
for a class of similarly situated individuals who worked at CVS locations in Rhode Island. 104.
Plaintiff Viau and the Rhode Island Class were employed by Defendants and were
required to perform integral and indispensable work activities without pay, including overtime pay. 105.
Said work often required Plaintiff Viau and the Rhode Island Class to work in
excess of forty (40) hours per week. 106.
Plaintiff Viau and the Rhode Island Class were treated as non-exempt employees
by the Defendants under the Rhode Island wage statutes. 107.
The Rhode Island wage laws require each covered employer, such as Defendants,
to compensate all non-exempt employees for services performed at the proper rate of pay and to compensate them at a rate of not less than one and one-half times the regular rate of pay for work performed in excess of forty hours in a work week. R.I. Gen. Laws 28-12-4.1(a). 108.
All similarly situated employees working for Defendants are similarly situated in
that they were subject to the same policy that did not compensate for all integral and indispensable work activities performed during the continuous workday. 109.
These employees are similarly situated in that they are all subject to Defendants’
identical compensation policies and plan that fails to lawfully compensate them.
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110.
This Petition is brought and maintained as a class action for all Rhode Island state
law claims asserted by Plaintiff Viau because her claims are similar to the claims of the Rhode Island Class members. 111.
The names and addresses of the Rhode Island Class members are available from
Defendants. Defendants failed to compensate Plaintiff Viau and the Rhode Island Class members at the proper rate of pay, and therefore, Defendants have violated, and continue to violate, the Rhode Island wage laws, R.I. Gen Laws ยง28-12-1, et seq. & 28-14-1, et seq. 112.
Plaintiff Viau, on behalf of herself and all similarly situated employees of
Defendants, seeks damages in the amount of all respective unpaid straight time and overtime compensations at a rate of one and one-half times the proper and legal rate of pay for work performed in excess of forty hours in a work week, plus liquidated damages in the amount of two times the amount of unpaid wages, as provided by the Rhode Island Wage Laws and such other legal and equitable relief as the Court deems just and proper. 113.
The Plaintiffs, on behalf of themselves and all similarly situated employees of
Defendants, seeks recovery of all attorney fees, costs, and expenses of this action, to be paid by Defendants, as provided by 28 R.I. Gen Laws ยง 28-14-19.2(a) and ยง 28-12-19. COUNT VII UNJUST ENRICHMENT PURSUANT TO TENNESEE COMMON LAW (Brought Against Defendants by Plaintiff Anita Johnson Individually and on Behalf of a Tennessee Rule 23 sub-class) 114.
Plaintiffs incorporate and re-allege the foregoing paragraphs 1 through 113 as if
fully set forth herein. 115.
This Count is brought by Plaintiff Anita Johnson on behalf of herself and as a
representative of a class of similarly situated individuals who worked at CVS locations in Tennessee. 20 Case 4:14-cv-00583-SRB Document 142 Filed 08/02/16 Page 20 of 24
116.
Defendants have benefitted and were enriched by making deficient payments for
work performed by Plaintiff Johnson and members of the Tennessee Class. 117.
Defendants have benefitted and were enriched at the expense of Plaintiff Johnson
and the Tennessee Class members because Defendants wrongfully obtained and withheld wages earned by Plaintiff Johnson and the Tennessee Class members. 118.
Defendants have retained the benefit of making deficient payments for work
performed by Plaintiff and the Tennessee Class members and Defendants continue to retain the benefit. 119.
Defendants intentionally refused to pay Plaintiff and the Tennessee Class
members at the proper rate for all hours worked in a scheme to reduce their labor costs. 120.
Defendants know or should know the proper rate of pay for Plaintiff and the
Tennessee Class members. Such wrongful conduct demonstrates bad faith on the part of Defendants. 121.
It is unjust for Defendants to retain the benefits from the unpaid work performed
by Plaintiff and the Tennessee Class members. 122.
Equity and good conscience require restitution to Plaintiff and the Tennessee
Class members for all time spent performing unpaid work. Plaintiff and the Tennessee Class Members have been wrongfully deprived of their money and are entitled to restitution. WHEREFORE, Plaintiffs, on behalf of themselves and all the proposed class members, pray for relief as follows: a.
Designation of this action as an action on behalf of the proposed classes and prompt issuance of notice to all class members apprising them of the pendency of this action;
21 Case 4:14-cv-00583-SRB Document 142 Filed 08/02/16 Page 21 of 24
b.
Designation of Plaintiffs as Representative Plaintiffs, acting for and on behalf of their respective Class members;
c.
A declaratory judgment that the practices complained of herein are unlawful under the various state laws and an injunction against the same;
d.
An award of damages of the full amount of the wage rate and an additional amount as liquidated damages, as allowed by the individual state’s laws, less the amounts actually paid to the Plaintiffs and the class by the Defendants;
e.
Pre-Judgment and Post-Judgment interest, as provided by law;
f.
Costs and expenses of this action incurred herein;
g.
Reasonable attorneys’ fees and expert fees; and
h.
Any and all such other and further relief as this Court deems necessary, just and proper. Respectfully submitted, WILLIAMS DIRKS DAMERON LLC /s/Eric L. Dirks Eric L. Dirks MO Bar No. 54921 1100 Main Street, Suite 2600 Kansas City, MO 64105 (816) 876-2600 (816) 221-8763 (fax) dirks@williamsdirks.com
_
THE EMPLOYEE & LABOR LAW GROUP OF KANSAS CITY, LLC Michael Hodgson Mo. Bar No. 63677 3699 SW Pryor Road Lee’s Summit, MO 64082 Tel: (816) 945-2122 Fax: (816) 945-2120 mike@elgkc.com
22 Case 4:14-cv-00583-SRB Document 142 Filed 08/02/16 Page 22 of 24
SIEGEL LAW GROUP PLLC Jack Siegel (Admitted Pro Hac Vice) Texas Bar No. 24070621 10440 N. Central Expy. Suite 1040 Dallas, Texas 75231 (214) 706-0834 (P) (844) LOW-WAGE (F)(TF) www.siegellawgroup.biz LEE & BRAZIEL, L.L.P. J. Derek Braziel (Admitted Pro Hac Vice) Texas Bar No. 00793380 Jay Forester (Admitted Pro Hac Vice) Texas Bar No. 24087532 1801 N. Lamar Street, Suite 325 Dallas, Texas 75202 (214) 749-1400 phone (214) 749-1010 fax www.overtimelawyer.com
ATTORNEYS FOR PLAINTIFF
23 Case 4:14-cv-00583-SRB Document 142 Filed 08/02/16 Page 23 of 24
CERTIFICATE OF SERVICE I hereby certify that on this 29th day of April 2016, I filed the foregoing with the Court’s ECF system which will send notification of the same to the following: Brian J. Zickefoose James Swartz, Jr. 900 W. 48th Place, Ste. 900 Kansas City, Missouri 64112-1895 Tel: (816) 753-1000 Fax: (816) 753-1536 Bzickefoose@polsinelli.com jswartz@polsinelli.com
Attorneys for Defendant /s/ Eric L. Dirks Attorney for Plaintiffs
24 Case 4:14-cv-00583-SRB Document 142 Filed 08/02/16 Page 24 of 24