CVS Caremark Call Center Wage & Hour Class Action Lawsuit Certified

A federal judge has kicked a CVS Caremark class action lawsuit into high gear by conditionally certifying a proposed Class and denying the defendant’s request to send the claim to arbitration.

U.S. District Judge Stephen R. Bough determined that plaintiffs Timothy Woods and Kimberly Gibson successfully defined a nationwide collective of CVS Caremark employees that was adequate for purposes of conditional Class certification.

On the same day, Judge Bough issued an order denying Caremark’s motion to send the claims of some would-be collective members to arbitration.

In their January 2014 Caremark class action lawsuit, plaintiffs Woods and Gibson alleged Caremark has a policy of denying wages and overtime pay to the telephone representatives working at its call centers.

The plaintiffs claimed that they and other Caremark representatives were expected to perform work before they clocked in for their shifts, work for which they were not paid.

In support of their motion for nationwide certification, the plaintiffs submitted Caremark documents showing that representatives were required to perform work prior to the start time of their shifts, then be ready to take calls when their shifts began.

The plaintiffs also submitted declarations from 22 Caremark representatives describing the pre-shift work in question.

Representatives declared that they were expected to arrive 10 to 15 minutes early for their shift to perform tasks like logging into the computer network and opening applications. CVS Caremark did not begin tracking compensable work time until the representatives logged into the company’s phone system, they alleged.

While Caremark argued that some of the representatives were barred from joining the collective by the company’s arbitration policy, Judge Bough determined that argument was mooted by his own simultaneous denial of Caremark’s motion to compel arbitration.

Caremark argued for enforcement of its arbitration policy against certain would-be Class Members who had signed it – even though the policy wasn’t implemented until months after this CVS Caremark class action lawsuit had been filed.

Plaintiffs countered that the arbitration policy “expressly excludes cases already on file. . . . This exclusion begs the question of why this Motion was filed.”

Judge Bough agreed with that argument, as well as with the argument that the defendants waived any right to arbitration by actively litigating the case in court for a year and a half before seeking to compel arbitration.

In February 2015, Judge Bough granted conditional certification to a smaller group of employees who worked at Caremark’s Lee’s Summit, Mo. call center.

The current order expands conditional certification to include employees from all Caremark call centers nationwide.

The certified plaintiff Class will consist of “all current and former Caremark/CVS non-exempt hourly CCRs who worked at any of Caremark’s/CVS’ call centers as a telephone-dedicated customer service employee in the past three years.”

Woods and Gibson seek an injunction against the practices complained of, plus reimbursement of their attorneys’ fees and costs of the litigation.

The plaintiffs are represented by Eric L. Dirks of Williams Dirks Dameron LLC and by Michael Hodgson of The Hodgson Law Firm LLC.

The CVS Caremark Wage and Hour Class Action Lawsuit is Timothy Woods and Kimberly Gibson v. Caremark PHC LLC, et al., Case No. 4:14-cv-583, in the U.S. District Court for the Western District of Missouri.

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