Asst. Managers Move For Cert. In CVS Overtime Action

Law360 - Richard Vanderford
November 9, 2009

A group of assistant store managers suing CVS Caremark Corp. for allegedly failing to properly pay overtime has moved for collective action certification, and asked the court to order the drugstore chain to turn over its employment records so the plaintiffs can begin contacting potential class members.

The group, led by former CVS assistant manager Reinaldo Cruz, filed a motion for conditional certification Friday in the U.S. District Court for the Southern District of New York.

Cruz and eight other assistant managers sued CVS in September, accusing the pharmacy giant of violating the Fair Labor Standards Act by deliberately misclassifying them as “executives” so that it could avoid paying them overtime compensation.

The number of plaintiffs could swell by tens of thousands if the motion is approved, according to the plaintiffs.

CVS is the largest retail pharmacy chain in the U.S., with over 7,000 stores, and the plaintiffs want to include past and present assistant managers from stores nationwide in the suit.

The assistant managers receive fixed salaries, but routinely work more than 55 hours each week, the suit claims.

Though the company classifies them as “executives” exempt from overtime pay, the assistant managers spend most of their time shelving merchandise, working registers, unpacking boxes, unloading trucks and taking out trash, for example rather than performing managerial duties, according to the suit.

“In order to decrease their labor expenses, CVS took advantage of ASMs’ [assistant managers] exempt (mis)classification to squeeze as much manual labor out of them as possible,” Friday’s motion said.

Though CVS has used various means to block several similar suits in the past, the plaintiffs contend that an analysis of CVS corporate documents and 20 declarations from CVS assistant managers mean their case is more than adequate for conditional certification.

The plaintiffs also want the court to order CVS to produce a file the potential plaintiffs’ names, and last-known contact information, along with work locations and dates of employments.

“Assistant managers have been filing lawsuits against CVS for years now. It’s about time that workers found out about their right to join a case and assert their case,” said Justin M. Swartz of Outten & Golden LLP, who represents the plaintiffs.

“We hope that they’ll respond in a timely way and that the court will agree that other workers should learn about their rights,” Swartz said.

                                                                    *                    *                     *

Outten & Golden LLP represents the plaintiffs.

                                                                    *                    *                     *

The case is Cruz et al. v. Hook-Superx LLC. et al., case number 09-cv-07717, in the U.S. District Court for the Southern District of New York.