Authored by Gena D. Usenheimer

Hourly pharmacists for CVS in California were forced to swallow a bitter pill late last year when Judge S. James Otero of the Central District or California denied their motion for class certification on claims for unpaid off-the-clock and overtime work.

The plaintiffs alleged that they were forced to work additional hours without pay in order to serve the pharmacy’s customers.  They argued that they could establish their claims on a class-wide basis by relying on CVS’s “Rx Connect” software system, which allows pharmacy employees to perform various daily tasks such as obtaining prescription information, verifying insurance data, and printing labels.  To access the system, employees must enter a three-letter credential that is obtained by inputting employee ID and password information each day.  The plaintiffs claimed they could establish liability for off-the-clock (and overtime) work by cross-referencing time records with the prescription records tracked in the Rx Connect database.

Judge Otero found the plaintiffs’ argument deficient in two main respects.  First, during the class period, CVS used two different computer systems, both of which allowed for the sharing of log-on credentials among multiple employees, making it nearly impossible to determine who was working when.  Second, the Rx Connect system (used for the majority of the class period) did not keep a record of which credentials were active for which employee at any given time.  This, too, made it nearly impossible to determine who was working when.  The court thus agreed with CVS that the only reliable way to learn whether pharmacy employees actually performed off-the-clock work is to ask them.  The need for such individualized inquiries defeated Rule 23(a)’s commonality requirement.

The same problem plagued the plaintiffs’ proposed overtime class:  there was no reliable method to track hours worked, and the evidence varied from manager to manager as to whether pharmacy employees were permitted to work overtime.  The court also found that the proposed class representatives were inadequate based on an “inherent tension” between supervisory pharmacists and those with subordinate titles.

The decision, Howard v. CVS Caremark Corp., serves as another helpful reminder that the presence of individualized inquiries remains a powerful weapon in the fight against Rule 23 class certification.