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Dean v. CVS Pharmacy, Inc.

United States District Court, E.D. Pennsylvania

September 6, 2017

KEITH ROBERT DEAN, JR., and ERIKA PRESSLEY, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
CVS PHARMACY, INC., and CVS CAREMARK CORPORATION, Defendants.

          MEMORANDUM

          GERALD AUSTIN MCHUGH UNITED STATES DISTRICT JUDGE

         This is a putative class action case on behalf of pharmacy technicians claiming that Defendants CVS Pharmacy Inc. and CVS Caremark Corporation (“CVS”) forced them to complete necessary educational certifications without pay in violation of state wage protection statutes and basic contract law. The named Plaintiffs, Keith Dean and Erika Pressley, are former CVS workers from Pennsylvania and New Jersey, respectively, and after extensive discovery, Defendants now move for summary judgement. The governing statutes are straightforward, and despite CVS' effort to complicate the issue, the contract principles are as well, with the result that the issue comes down to the adequacy of Plaintiffs' proof. As to the New Jersey action brought by Pressley, summary judgement will be granted, but as to the Pennsylvania action brought by Dean, summary judgement will be denied.

         1. The Essential Undisputed Facts

         CVS requires pharmacy technicians to complete numerous trainings through an online course provider called LEARNet. Trainees complete some online modules during their onboarding with CVS, but must complete others during their initial months as working pharmacy technicians. When feasible, they can complete these modules in CVS stores, during regular work shifts. However, when they cannot complete the modules at work, they must do them at home. Unless and until necessary modules are completed, the pharmacy technicians are prevented from scheduling future in-store (paid) hours.

         It is CVS corporate policy that trainees must receive payment for their time spent completing LEARNet trainings. See “Work That Must Be Paid, ” ECF # 101-5, pp54-59. In its supervisor training materials, CVS explicitly contemplates that employees may not be able to complete all LEARNet courses in the store. Id. The company has thus established a “payroll slip” method of timekeeping for hours completed at home: when an employee must finish LEARNet work at home, managers are told to “[i]nstruct the colleague to submit a payroll slip to the Store Manager in the same week the training course is completed. These slips are available on the course description page on LEARNet.” Id. at 59.

         The parties agree that both Dean and Pressley regularly completed LEARNet training at home. Dean estimates he completed “at least 20-30” one-hour LEARNet modules at home without pay each year. Plf. Resp. to MTD, ECF # 17 at 4. Pressley, though her language is more equivocal, estimates the same. Pressley Dep. Tr. at 150. They now seek compensation for this time, as well as statutory damages, for themselves and similarly situated pharmacy technicians.

         2. The Central Question: “How Do I Get Paid?”

         Both Dean and Pressley asked their supervisors how they would get paid for their at-home work. They received radically different answers, and those differences drive the resolution of the pending motion. In deposition testimony, Pressley said she asked her New Jersey store manager, “how do we get paid for the time that we spend training at home?” Dep. Tr. at 79. The supervisor responded: “[F]ill out the timesheets that were given” and “submit [them] to the manager.” Id. Pressley testified that she “kn[e]w what she meant, when [the supervisor] said timesheet”: the LEARNet timesheets had been distributed during onboarding training.[1] Id. at 80. But after onboarding training was complete - i.e., once Pressley began working in-store - she no longer had the paperwork from onboarding, so she did not complete any timesheets or otherwise log and submit records of her at-home work. She never asked her supervisor, or anyone else, for a timesheet after the conclusion of onboarding training. Id. at 81. “They [the timesheets] were to be given. That was the thing, ” she testified. Id.

         Dean also asked his Pennsylvania supervisors how he would get paid for his LEARNet hours. Though he did not speak to his store manager about LEARNet time, he repeatedly asked Tony LaMastra, the pharmacist-in-charge at his store, “for the modules that, you know, that we have to do at home, how is it that we are getting reimbursed?” La Mastra gave vague answers to Dean, saying both “I don't know, ” and “you may not.” Dep. Tr. at 38-42. After receiving these answers, Dean persisted: “When he initially said, ‘I don't know, ' that's when I proceeded with more questions and then his final answer was, ‘You're not going to get paid for that.'” Id. at 46. “After I kept asking him, he pretty much came out and said they don't pay for time done at home.” Id. at 44.

         Dean also asked Tony's work partner, Charlene, how he would be paid for his LEARNet time: “I did bring it up to her about training. She didn't really care. That's pretty much what her response was, she did not care.” Id. at 58. Later, when Dean attempted to complete LEARNet trainings during his regular shift, he testifies that Charlene yelled at him and said “I don't care. Do [the training] on your own time.” Id. at 61. Dean was never told that CVS policy entitled him to payment for his at-home LEARNet hours, and he was not told of a system that he could use to record those hours.

         3. Pressley's Case

         Pressley claims CVS violated the New Jersey Wage and Hour Law, breached a contract with her, and was unjustly enriched by her unpaid work. Because she could have, but did not, obtain and fill out timesheets (“payroll slips”) for her hours, these claims must fail. I will address each of her arguments in turn.

         A. The New Jersey Wage and Hour Law (NJWHL)

         The NJWHL states that “[e]xcept as otherwise provided by law, every employer shall pay the full amount of wages due to his employees at least twice during each calendar month…” N.J.S.A. 34:11-4.2. Pressley argues that this statute entitles her to payment for her at-home LEARNet time, because she was due wages for all the hours that she worked for CVS. Though the parties agree that Pressley's LEARNet time was compensable, and that she was not paid, I nonetheless cannot find that CVS violated the NJWHL. In the simplest sense, CVS did not deny Pressley wages for any hours that she worked; Pressley herself failed to ask CVS for payment for her time.

         An employer cannot culpably withhold payment from an employee for hours of work that it did not know about. A company can thus only pay “the full amount of wages due to [its] employees” when the employees make clear that they were on the clock. Under New Jersey law, it is a business's duty to keep accurate records of when its employees are working.[2] But almost all businesses require help from their employees in putting ...


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