DEAN v. CVS PHARMACY, INC. et al

Filing 109

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 9/6/17. 9/6/17 ENTERED AND COPIES E-MAILED.(mbh, )

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KEITH ROBERT DEAN, JR., and ERIKA
PRESSLEY, on behalf of themselves and all
others similarly situated,
Plaintiffs,
v.

Civil Action No. 14-2136

CVS PHARMACY, INC., and CVS
CAREMARK CORPORATION,
Defendants.

MEMORANDUM
MCHUGH, J.

SEPTEMBER 6, 2017

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.

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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.

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2. The Central Question: “How Do I Get Paid?”
Both Dean and Pressley asked their supervisors how they would get paid for their athome 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.
1

She did, at least once, fill out a timesheet for LEARNet training that she did at home. Id. at 5051. She was properly paid for that time.
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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]

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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 together such records – and they
receive this help through timekeeping systems like punch-cards, log-ins, and timesheets.
CVS adopted a reasonable timekeeping system for its pharmacy technicians’ LEARNet
hours: it used timesheets. Pressley, however, did not fill out timesheets for her hours – and she
did not otherwise attempt to report the time so that she could be paid. She did tell her supervisor
that she was completing LEARNet modules at home, and she explicitly asked how to record
those hours. But when the supervisor told her to log them on a timesheet, she did not do so.
Pressley Dep. Tr. at 79-80. Pressley emphasizes the fact that a timesheet was not provided to
her. But she knew that she could get paid for the LEARNet home hours if she logged them
properly – if she did not have access to a timesheet, she should have simply asked for one.
Pressley appeared to claim at oral argument that she did not record her at-home hours
because CVS prevented or discouraged her from doing so. She offers no support for this claim.
She explained her lack of failure to record the hours by saying, “we never got a timesheet for
work we did at home, because it was like, who would give it to us.” Id. at 81. But she also
testified that she never asked anyone for a timesheet. Id. Pressley was clearly comfortable
enough with her supervisor to ask how she should log her at-home hours, and she has submitted
absolutely no evidence that anyone at CVS dissuaded her from putting in for her time. Her
2

See N.J. Stat. § 34:11 – 56a20 (“Every employer of employees shall keep a true and accurate
record of the hours worked by each and the wages paid by him to each.”) This requirement has
been interpreted identically to a similar requirement under the federal Fair Labor Standards Act
(FLSA). See Rong Chen v. Century Buffet and Restaurant, No. 09-1687, 2012 WL 113539 *7
(D.N.J. Jan. 12, 2012) (“[T]he NJWHL record-keeping, overtime compensation, and minimum
wage requirements are modeled after and nearly identical to their analogous Fair Labor
Standards Act regulations.”).
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supervisors at CVS had nothing to gain by preventing her from logging LEARNet time, and no
witness or other evidence has suggested that they did so. Accordingly, no reasonable jury could
find that Pressley was coerced into working without pay.
Pressley further argues that CVS’s timekeeping system was facially inadequate under
New Jersey law. Because the NJWHL requires employers to keep accurate records of hours
worked by employees for payment purposes, Pressley argues that CVS should have known about
and accounted for the hours in question. A lawful system, according to Pressley, would integrate
the timestamp information provided by LEARNet into CVS’s electronic shift-work timekeeping
system. 3
Pressley has not cited, nor has this Court found, any case law suggesting that such a
system is necessary under New Jersey (or any other) law. Admittedly, no New Jersey court
appears to have rejected Pressley’s argument either. But it is not my place as a federal judge
sitting in diversity, in an adjoining state, to impose the requirement that Pressley seeks. To do so
would go far beyond the text of the statute and judicially specify a particular form of record
keeping, replacing a timekeeping system that thousands of companies use and have used for
generations: the timesheet. No case in New Jersey has challenged the use of timesheets, and
other courts have made clear that employees who fail to log hours through existent, reasonable
timekeeping procedures cannot prevail in wage and hour lawsuits seeking payment for those
hours. See, e.g., Brown v. ScriptPro, LLC., 700 F.3d 1222, 1230 (10th Cir. 2012), White v.

3

LEARNet tracks some, but not full, information about user activity in its training modules. The
program timestamps the moment at which an employee logs into the LEARNet portal and the
moment at which she completes each module. However, it does not track log-out times or the
amount of time an employee spends completing modules.
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Baptist Mem. Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012). 4 The language of the
NJWHL does not in any respect suggest than an employer must adopt a particular means of
tracking employee hours. Likewise, the language of FLSA, on which the NJWHL is based, also
does not suggest that an employer must adopt a particular system for timekeeping. 5 I have found
no evidence that any court has found timesheets to be an inadequate timekeeping system under
the NJWHL, FLSA, or any other statute.
In effect, Pressley asks me to go far beyond the literal terms of the NJWHL, and require
a seamless, integrated, computerized system. Such a method of timekeeping is undoubtedly
more efficient and employee-friendly than the chore of obtaining and filling out timesheets, but it
is not one that the law requires. Pressley broadly argues that because an employer has an
absolute responsibility to maintain accurate records, Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680 (1946), 6 it is limited in its abilility to impose any responsibility on employees. This
carries the principles of Anderson to an illogical extreme. The strongest authority Plaintiff
advances is Kuebel v. Black & Decker Inc., 643 F.3d 352, 363 (2d Cir. 2011), which describes an
employer’s duty as “non-delegable” in the context of a case where employees were forbidden
from recording overtime hours on timesheets. In that context, where there was a deliberate effort
to avoid payment, the analysis makes sense. But there is a difference between a case where
employees were being asked to falsify as compared to one where they were merely asked to
4

See also Fletcher v. Universal Tech. Inst., Inc., 2006 WL 2297041 (M.D. Fl., June 15, 2006)
(failure to use time log system precluded recovery of unpaid hours under FLSA).
5

See 29 CFR § 516.1 (requiring employers to keep various employee records, including records
of hours worked, but specifying, “No particular order or form of records is prescribed by the
regulations in this part.”).
6

Anderson was almost immediately superseded by statute. Integrity Staffing Solutions, Inc.,v.
Busk, ___ U.S. ___, 135 S. Ct. 513 (2014).
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inform. CVS created a legitimate, reasonable system for its employees to report at-home
LEARNet training hours. There is no real evidence to suggest that employees were discoruaged
from using the system; instead, Pressley simply neglected to follow it. Her failure to log her
hours precludes her statutory claim for relief.
B. Breach of Contract
Pressley next alleges that CVS breached its contract with her by refusing to pay her the
agreed-upon wage for hours she worked. CVS claims that it had no contract at all with Pressley
– a position that defies reason. Although CVS’s handbook and other written materials make
clear that they do not establish a for-cause employment contract (the company is free to fire
employees at any time, for any reason), it does not follow that there was no contract for wages
already earned. 7 Employees are contractually entitled to payment for hours they have already
worked at an agreed-upon wage. 8 Therefore, Pressley can fairly argue that a contract existed
here.
The evidence, however, does not support Pressley’s conclusion that CVS breached the
contract. It was CVS policy that employees should get paid for at-home LEARNet hours.
Pressley’s supervisor correctly followed that policy when she told Pressley to record those hours
on a timesheet. By informing Pressley that she was entitled to be paid, and telling her how to put
7

It is worth noting that fifteen of the twenty-three cases cited in CVS’s Motion for Summary
Judgment regard wrongful termination. In such cases, the question is whether an employee
enjoyed a continuing promise of employment, so long as she performed her work satisfactorily.
The question here is different: whether any contract existed is a separate inquiry from whether
that contract guaranteed future work.

8

A contract of this type is implied, rather than express, and – like most employment contracts –
it is unilateral. See 19 Williston on Contracts § 54:8. The employer offers to pay a certain wage
for the performance of certain work, and the employee is entitled to that wage when s/he
completes the work to satisfaction. Id. See also Braun v. Wal-Mart Stores, Inc., 24 A.3d 875,
939-40 (Pa. Super. Ct. 2011); Abbot v. Schnader, Harrison, Segal & Lewis, LLP, 805 A.2d 547,
558-59 (Pa. Super. Ct. 2002).
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in for her time, CVS did what it was required to do. Pressley’s failure to ask follow-up
questions, and thus determine how to put in for her time, cannot be explained as a breach of
contract by CVS. Summary judgment on this claim is thus appropriate.
C. Unjust Enrichment
Pressley’s unjust enrichment claim fails for the same reason that her other claims fail.
CVS was willing to pay her for her at-home work, and her superior told her how to go about
being paid for the work. CVS was not unjustly enriched by Pressley’s free labor, because it did
not expect the labor to be free. Pressley’s actions, rather than the actions of CVS, were what
caused her to not be paid. Accordingly, this claim cannot succeed.
4. Dean’s Case
Dean alleges that CVS violated the Pennsylvania Wage Payment and Collection Law
(PWPCL), breached its contract with him, and was unjustly enriched by his work. He has raised
an issue of material fact on each count.
1. The Pennsylvania Wage Payment and Collection Law (PWPCL)
The PWPCL, 43 P.S. § 260.3, requires that “every employer shall pay all wages, …, due
to his employees on regular paydays designated in advance by the employer.” It is largely
comparable to the NJWHL, but provides a remedy only for individuals suing under a contract.
See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 (3d Cir. 2003). To recover under the
WPCL, a plaintiff must “aver that he was contractually entitled to compensation from wages and
that he was not paid.” Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 716 (Pa. Super. Ct.
2005). As with Pressley, CVS claims that no contract existed here, and that Dean’s claim fails as
a result. I disagree. Like Pressley, there is evidence from which a jury could reasonably
conclude that Dean formed an implied unilateral contract with CVS when he worked hours on

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the company’s behalf. Unlike Pressley, however, Dean was left unpaid through no fault of his
own. Instead, it was the fault of misinformed supervisors who told Dean he had to work the
hours for free.
CVS seeks to exploit the fact that there is no express contract between the parties, asking:
how could Dean infer a right to payment for his LEARNet training time when his supervisor
explicitly told him he must complete the work without pay? It contends that any implied
contract with Dean could not possibly have covered LEARNet time, because any expectation on
Dean’s part that he would be paid for the time could not be reasonable in light of his supervisors’
comments to the contrary. This argument fails for two reasons. First, it mischaracterizes
Pennsylvania law on implied contract, and second, it would compel an absurd result.
The terms of an implied contract must be evaluated based on how an objective observer
would interpret them. In the wage and hour context, this means that even where workers are told
that certain time will not be compensated, a unilateral, implied contract can still entitle them to
wages for that time. In Braun v. Wal-Mart Stores, Inc., 24 A.3d 875 (Pa. Super. Ct. 2011),
aff'd, 630 Pa. 292, 106 A.3d 656 (Pa. 2014), the Pennsylvania Superior Court considered whether
a contract entitled Wal-Mart workers to compensation for mandatory fifteen-minute work breaks
that Wal-Mart supervisors had forced their employees to work through. Though the employees
were clearly told to clock out during these breaks (thus indicating that they would not be paid),
the court nonetheless found that they were entitled to payment, because Wal-Mart’s corporate
policy stated in numerous written materials, including its employee handbook, that workers were
in fact to be paid for the time. 9 As in Braun, a jury could find Dean’s expectation that he would

9

The facts in this case are more compelling than those in Braun. Plaintiffs there sought and won
the right to be paid for their break time; Dean seeks wages for time spent on required training
that CVS has refused to compensate.
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be paid for his LEARNet trainings to be objectively reasonable, not just in light of CVS’s
corporate policy, but also when viewed by the ordinary expectations of the workplace. On that
score, Dean’s repeated inquiries demonstrate his expectations.
Moreover, where a supervisor improperly tells a worker that he must work hours without
pay, it would be a perverse result to conclude that the company could then avoid paying the
worker simply because the supervisor got it wrong. Here, CVS seeks to avoid paying Dean by
arguing, “Our supervisors gave you bad information, so you lose.” But one cannot rescind an
offer of payment that has been accepted through performance. Abbot, 805 A.2d 547 (Pa. Super
2002) illustrates the point. There, a law firm altered the retirement benefits of two attorneys after
the benefits had vested. The Pennsylvania Superior Court found that the firm could not
retroactively invalidate the benefits, because they had already been earned. It offered the
following analogy: “If an employee is promised $10 per hour effective Monday, and told that
her wage can be reduced at any time, and on Wednesday her wage is cut to $5 effective
Thursday, her employer cannot refuse on pay day to give her $10 per hour for her work on
Monday through Wednesday.” Abbott, 805 A.2d at 559 (quoting Amatuzio v. Gandalf Systems
Corp., 994 F.Supp. 253, 266 (D.N.J. 1998)).
Pennsylvania appellate decisions have also recognized that accepting the benefit of
another’s service creates an obligation notwithstanding an attempt to repudiate it: “A promise to
pay the reasonable value of the service is implied where one performs for another, with the
other’s knowledge, a useful service of a character that is usually charged for, and the latter
expresses no dissent or avails himself of the service.” Home Protection Building & Loan
Association, 17 A.2d 755, 757 (Pa. Super. 1941) (emphasis added). Accord, Braun, 24 A.3d at
942; Martin v. Little, Brown, and Co., 450 A.2d 984, 987 (Pa. Super. Ct. 1981). And

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realistically, one cannot be deemed to have gratuitously offered his services where completing
the training modules was a prerequisite to his ability to work. Compare Brown, supra, 450 A.2d
at 988.
These same principles apply here. A jury could reasonably find that CVS offered –
through its job application procedure, employment materials, and employee statements – to pay
Dean a certain hourly wage for his work as a pharmacy technician, and that Dean accepted that
offer through his performance of pharmacy technician duties, which included the completion of
LEARNet trainings. His supervisors’ ill-informed comments are not an absolute legal defense
protecting CVS from liability under that implied contract.
2. Breach of Contract
The analysis for this claim is nearly identical to the analysis above. Issues of material
fact exist about whether CVS breached its implied, unilateral contract with Dean. Accordingly,
summary judgment for this claim is denied.
3. Unjust Enrichment
Dean has pled this equitable claim in the alternative, as a backstop for his statutory and
common law claims. In Pennsylvania, “[a] cause of action for unjust enrichment is a claim by
which the plaintiff seeks restitution for benefits conferred on and retained [by] a defendant who
offered no compensation in circumstances where compensation was reasonably expected.”
White v. Conestoga Title Ins. Co., 617 Pa. 498, 527 n.6, 53 A.3d 720, 738, n.6 (Pa. 2012) (citing
American & Foreign Ins. Co. v. Jerry’s Sports Center, Inc., 2 A.3d 526, 537 n.7 (Pa. 2010)).
The facts here would appear to present a textbook example of such a claim. Dean clearly
conferred a benefit on CVS by working unpaid hours at home. CVS clearly retained that benefit,
and there is evidence that it expressly refused to compensate Dean for his work. CVS’s own

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policy, Dean’s repeated inquiries, and the simple realities of the labor market support the
conclusion that Dean would reasonably expect compensation for the required work he completed
at home. CVS’ defense to this claim principally consists of a conclusory argument that there was
nothing unjust about Dean not being compensated, an argument that lacks any compelling
foundation.
Unjust enrichment is typically advanced as an equitable claim, but can parallel a theory
of recovery rooted in law. Dastgheib v.Genentech, Inc. 457 F. Supp. 2d. 536 (E.D. Pa. 2006)
(Robreno, J.). For present purposes, there is no need to decide whether the nature of the claim is
predominately legal in nature, such that it should be decided by a jury, or predominately
equitable in nature, and either submitted for an advisory jury verdict under FRCP 39(c), or
reserved for presentation to the court if the jury finds no legal remedy. To resolve this pending
motion, I need only decide whether there are facts of record that would support recovery under
such a theory, and I conclude that there are.

/s/ Gerald Austin McHugh
United States District Judge

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