In a recent 2010 decision from the Southern District of New York, Cruz v. Hook-SupeRx,L.L.C., 2010 U.S. Dist. LEXIS 81021 (S.D.N.Y. Aug. 5, 2010), Judge Crotty granted conditional collective action certification to a group of current and former Assistant Store Managers at CVS. The Assistant Managers hailed from six states: Pennsylvania, New Jersey, New York, Massachusetts, Michigan, and North Carolina.
Conditional collective certification was granted pursuant to the Fair Labor Standards Act (FLSA) which allows employees to not only sue on their own behalf but also on behalf of other employees who are “similarly-situated.” Plaintiffs alleged that they were improperly classified as executives and wrongfully denied any overtime compensation. Judge Crotty noted that Plaintiffs burden at this stage was minimal and that “[a] modest factual showing is sufficient to demonstrate that Plaintiffs and potential Plaintiffs were victims of a common policy or plan that violated the law.”
Indeed, the Court found very persuasive declarations of Assistant Store Managers in over 9 states which showed that CVS stores were all controlled by a corporate office; that Assistant Store Managers were required to participate in a uniform training program; and that the Assistant Managers were performing many non-exempt duties: shelving merchandise, unpacking boxes, loading and unloading trucks, helping customers and working a cash register. Moreover, the Assistant Managers did not regularly hire or fire other employees.
Judge Crotty granted Plaintiffs’ motion for conditional collective action certification and also authorized court notice to go out to other Assistant Store Managers eligible to join the case. This case demonstrates that the standard for initially certifying a class pursuant to the FLSA is indeed a low hurdle for overtime and wage attorneys to meet. Thus, overtime and wage attorneys in Pennsylvania, New Jersey, and New York should be cognizant of possible claims that Assistant Managers may have for denied overtime compensation.