On August 2, 2016, the U.S. District Court for the Western District of Missouri granted nationwide conditional certification of an FLSA collective of hourly Customer Care Representatives at CVS Caremark call centers in Woods v. Caremark PHC, L.L.C., No. 4:14-cv-583-SRB. In this CVS call center overtime lawsuit, the Customer Care Representatives (CCRs) alleged they were not paid for pre-shift work, such as logging onto computers and opening required programs before their shifts.
Jack Siegel, with co-counsel, joined the case in March 2016. Before he joined, the court had certified a collective at a single Missouri call center in 2015. In March 2016, the workers moved to expand it nationwide. On August 2, 2016, the court granted that motion.
Judge Stephen R. Bough signed the order on August 2, 2016, after an in-person hearing on May 24, 2016. He granted the workers’ Motion for Conditional Certification under 29 U.S.C. § 216(b).
The court found that the workers had made at least a modest factual showing that they and the other putative members were victims of a single decision, policy, or plan. The order calls the defendants “Caremark/CVS.”
The collective went from one call center to all of them. On February 20, 2015, the court had conditionally certified a collective of non-exempt hourly CCRs at Caremark’s Lee’s Summit call center. After limited discovery, the workers asked to expand it.
As the order describes it, they sought a collective of all current and former non-exempt hourly CCRs at any Caremark/CVS call center. Each had to have worked as a telephone-dedicated customer service employee in the past three years.
Caremark/CVS said it was unclear which call centers were included. Discovery had not yet identified every call center. But the workers sought certification at all call centers, known and unknown, and the court found they had described the group with enough detail.
The court also ordered two steps to get notice out:
Caremark/CVS asked the court to use a tougher “intermediate” standard because some discovery had been done. The court noted that only one company deposition had been taken, and only limited written discovery. It applied the lenient standard and added that regardless of the standard applied, i.e. lenient or intermediate, Plaintiffs have satisfied their burden for nationwide conditional certification.
The company also pointed to evidence that pre-shift work differed in how often it happened, how long it took, and what it involved. The court wrote that the evidence of variances in the frequency, duration, and type of Pre-Shift Work does not defeat conditional certification as such evidence is relevant to the stage-two inquiry, not stage one.
Caremark/CVS also asked the court to keep notice from workers who had signed arbitration agreements. The court explained that by separate order the Court denied Caremark/CVS’ motion to compel arbitration, and Caremark/CVS’ argument on this point is now moot.
Conditional certification is a preliminary step that lets court-approved notice go out to workers. It is not a finding that Caremark/CVS violated the law or that any worker is owed pay.
The workers filed 23 declarations from 22 CCRs. Each had the same or a similar main job duty: answering phone calls about Caremark/CVS products and services.
According to the workers’ summary of those declarations, CCRs were expected to arrive 10 to 15 minutes early so they could take calls when their shift started. Before the shift, they logged onto a computer, logged into the company network, and opened the programs they needed.
The workers said the company tracked time through the phone system. They said it paid only for work after they logged into the phone system. As the order describes them, company documents the workers filed said CCRs had to do this pre-shift work before their shift start time.
As general information, the Portal-to-Portal Act sets the test for unpaid pre-shift and off-the-clock work. An activity before the shift is paid time if it is a principal activity or is integral and indispensable to one. That can include computer boot-up and login time. The Supreme Court applied that test in Integrity Staffing Solutions v. Busk (2014).
The U.S. Department of Labor’s Fact Sheet #64 on call centers gives one example of a call center worker’s first principal activity of the day: starting the computer to download work instructions, computer applications, and work-related emails.
The court applied, at the time of this 2016 order, the two-step process that a majority of district courts in the Eighth Circuit used. At step one, conditional certification, the court used a lenient standard and did not weigh the merits. Some federal appeals courts have since changed this approach — the Fifth Circuit in Swales v. KLLM Transport Services (2021) and the Sixth Circuit in Clark v. A&L Homecare & Training Center (2023).
This page describes a 2016 court order. The time to join that collective was set by the court in that case. If you have worked in a similar role, the Siegel Law Group can evaluate your own claims.
The collective the court conditionally certified in 2016 included non-exempt, hourly, telephone-dedicated customer service employees at Caremark/CVS call centers. Did you have to start your computer and programs before you could log into the phone system? A lawyer can review how you were paid for that time.
Contact the Siegel Law Group for a free consultation.
Related rulings: Dickens v. J.G. Wentworth, another call center overtime case over unpaid hours.
They can be. Under the Portal-to-Portal Act, an activity before the shift is paid time if it is a principal activity or is integral and indispensable to one; an employer requiring an activity does not settle the question on its own. The Department of Labor has said that starting the computer to download work instructions and applications can be a call center worker’s first principal activity of the day. Whether specific boot-up or login minutes count depends on the facts.
Yes. The August 2, 2016 order in Woods v. Caremark was nationwide. It reached non-exempt, hourly, telephone-dedicated customer service employees at any Caremark/CVS call center, including call centers not yet identified in discovery. The court’s earlier 2015 order had covered only the Lee’s Summit, Missouri call center.
The 2016 order in Woods v. Caremark did not carve call center workers who signed arbitration agreements out of the notice list. By a separate order, the court denied the company’s motion to compel arbitration, and it called the company’s notice argument moot. Since 2016, some federal appeals courts have held that workers shown to have valid arbitration agreements can be left off the notice list. In other cases, the answer depends on the court and the agreement.
That did not stop conditional certification at the first stage in Woods v. Caremark. Caremark/CVS pointed to evidence that pre-shift work varied in how often it happened, how long it took, and what it involved. The court held that this evidence mattered at the second stage of the case, not the first. Differences like these can still be raised later, when an employer asks the court to decertify the collective.
A call center worker generally must sue over unpaid pre-shift time within two years after the paycheck that left that time out, or within three years if the employer willfully broke the law (29 U.S.C. § 255(a)). Joining a collective action does not stop that clock until the call center worker’s signed consent form is filed in court (§ 256(b)). Read more about the statute of limitations for overtime claims.
The Siegel Law Group is a national overtime and wage law firm devoted entirely to representing workers denied overtime pay. Where many firms include wage cases as a small part of a broader employment practice, the Siegel Law Group has built its entire practice around overtime litigation — and the results reflect that commitment: $100M+ recovered for workers, 50+ class and collective action certifications, and 100+ federal lawsuits filed in 27+ federal courts nationwide. Founding attorney Jack Siegel is a Bloomberg BNA contributing author on wage and hour law.
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