Case 1:22-cv-00071-JJM-LDA Document 1 Filed 02/14/22 Page 1 of 9 PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF RHODE ISLAND
`
`
`
`
`
`
`
`VONQUET BOWMAN
`Individually and on behalf of all others
`similarly situated
`
`
`
`
`
`
`
`v.
`
`CVS HEALTH CORPORATION and
`NEW JERSEY CVS PHARMACY,
`L.L.C
`
` Defendant.
`
`Plaintiff,
`
`
`
`
`
`
`
`
`Case No:
`
`
`
`
`COLLECTIVE ACTION COMPLAINT
`
`
`
`JURY TRIAL DEMANDED
`
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`:
`
`
`
`COLLECTIVE ACTION COMPLAINT
`
`By and through her undersigned counsel, Plaintiff Vonquet Bowman, individually and on
`
`behalf of all others similarly situated, hereby brings forward this Collective Action against CVS
`
`Health Corporation and New Jersey CVS Pharmacy, L.L.C. to recover unpaid overtime
`
`compensation, liquidated damages, attorney’s fees, costs, and other relief as appropriate under
`
`the Fair Labor Standards Act (“FLSA”) 29 U.S.C. §§ 201 et seq. Plaintiff’s allegations herein are
`
`based upon knowledge as to matters relating to herself and upon information and belief as to all
`
`other matters:
`
`JURISDICTION AND VENUE
`
`1.
`
`The subject matter jurisdiction of the Court is invoked pursuant 29 U.S.C. § 216(b)
`
`

`

`Case 1:22-cv-00071-JJM-LDA Document 1 Filed 02/14/22 Page 2 of 9 PageID #: 2
`
`and 28 U.S.C. § 1331.
`
`2.
`
`Venue lies in this District pursuant to 28 U.S.C. § 1391 because the Defendants are
`
`incorporated in this District and subject to personal jurisdiction in this District.
`
`PARTIES
`
`3.
`
`Plaintiff Vonquet Bowman is an adult resident of Ohio who was jointly employed
`
`by CVS Health Corporation vis-à-vis New Jersey CVS Pharmacy, L.L.C. in New Jersey from
`
`2013 to 2021.
`
`4.
`
`Defendant CVS Health Corporation (“CVS”) is a Rhode Island corporation with
`
`headquarters at 1 CVS Dr., Woonsocket, RI 02895. CVS operates one of the largest retail
`
`pharmacy chains in the United States, with approximately 10,000 retail pharmacy locations
`
`across the country.
`
`5.
`
`Defendant New Jersey CVS Pharmacy, L.L.C. is a wholly-owned subsidiary of
`
`parent company CVS.
`
`COVERAGE UNDER THE FLSA
`
`6.
`
`At all relevant times, Defendants are and have been an employer within the
`
`meaning of 29 U.S.C. §203(d).
`
`7.
`
`At all relevant times, Defendants are and have been an enterprise within the
`
`meaning of 29 U.S.C. §203(r).
`
`8.
`
`At all relevant times, Defendants have been an enterprise engaged in commerce or
`
`in the production of goods or services for commerce within the meaning of 29 U.S.C. §203(s)(1).
`
`9.
`
`Defendants have had an annual gross volume of sales made or business done of not
`
`less than $500,000 (exclusive of excise taxes at the retail level, which is separately stated).
`
`
`
`2
`
`

`

`Case 1:22-cv-00071-JJM-LDA Document 1 Filed 02/14/22 Page 3 of 9 PageID #: 3
`
`10.
`
` At all relevant times, Plaintiffs and the Collective Members are and were
`
`employees engaged in commerce or in the production of goods for commerce as required by 29
`
`U.S.C. §207.
`
`STATEMENT OF FACTS
`
`In December 2019, Chinese health officials first identified the novel coronavirus
`
`11.
`
`commonly referred to as COVID-19. By early 2020, the World Health Organization had declared
`
`a global health emergency, with the United States quickly following suit and declaring a public
`
`health emergency for the nation. Many local and state governments implemented lockdowns and
`
`strict social distancing requirements to slow the spread of the deadly virus, while businesses
`
`largely transitioned to virtual work, wherever possible. The societal impact of the COVID-19
`
`pandemic is staggering and ongoing.
`
`12.
`
`Throughout 2020, various pharmaceutical companies, such as Pfizer, Inc. and
`
`Moderna, Inc., worked to develop effective vaccines against COVID-19. Each company’s
`
`vaccine candidate received emergency authorization from U.S. regulators by the end of 2020.
`
`Along with Walgreens Boots Alliance, Inc., CVS announced a coordinated effort to administer
`
`vaccine doses to residents of long-term U.S. nursing care facilities beginning in December 2020.
`
`13.
`
`Plaintiff Bowman has been jointly employed by CVS vis-à-vis New Jersey CVS
`
`Pharmacy, L.L.C. as a pharmacy technician since 2013. In late December 2020, Plaintiff was
`
`assigned to work on the long-term nursing care facility vaccine administration project, as
`
`announced and mandated by parent company CVS. At this time, her rate of pay for normal
`
`working hours was $16.67 per hour. The vaccine project required Plaintiff to travel to long-term
`
`nursing care facilities and directly administer the vaccine to residents. Long-term nursing care
`
`facilities are high-risk environments for the spread of viral and bacterial disease, including
`
`
`
`3
`
`

`

`Case 1:22-cv-00071-JJM-LDA Document 1 Filed 02/14/22 Page 4 of 9 PageID #: 4
`
`COVID-19.1 As such, Plaintiff and other CVS employees assigned to the vaccine project were
`
`paid a premium rate of $20.00 per hour for all time worked on the project.
`
`14.
`
`This premium pay rate for the vaccine project was part of the regular rate of pay
`
`as defined by FLSA and its implementing regulations. Under FLSA, the regular rate of pay must
`
`consist of all forms of remuneration including “such extra premiums as night shift differentials…
`
`and premiums paid for hazardous, arduous, or dirty work.” 29 C.F.R. §778.207(b).
`
`15.
`
`Consistent with Section 7(a) of the Fair Labor Standards Act, Plaintiff and those
`
`similarly situated are entitled to overtime pay equal to one and one-half times their regular rate of
`
`pay for hours worked in excess of forty (40) hours per week.
`
`16.
`
`Plaintiff and those similarly situated often worked in excess of 40 hours per week
`
`while working on the vaccine project but were paid overtime for those hours at a rate that failed
`
`to include Defendant’s extra premium, as required by FLSA, for time spent on the project.
`
`17.
`
`For example, Plaintiff’s pay stub covering the period 01/03/2021 – 01/09/2021
`
`shows a regular rate of $16.67 per hour and an overtime rate of $25.01 per hour. This overtime
`
`rate is one and one-half times the regular rate as stated. However, the 01/03/2021 – 01/09/2021
`
`pay period also includes 25.33 hours worked on the vaccine project, paid at a rate of $20.00 per
`
`hour. Therefore, her overtime rate for this period does not account for this non-discretionary
`
`premium, which amounts to an additional $3.33 paid per hour, and therefore violates the Fair
`
`Labor Standards Act.
`
`18.
`
`As a result of these violations, Defendants are liable to Plaintiff and those
`
`similarly situated for unpaid wages, liquidated damages, reasonable attorney’s fees, expenses,
`
`interest, court costs, and any other relief deemed appropriate by the Court.
`
`
`1 https://www.aarp.org/caregiving/health/info-2020/nursing-homes-coronavirus-faqs.html
`
`
`
`4
`
`

`

`Case 1:22-cv-00071-JJM-LDA Document 1 Filed 02/14/22 Page 5 of 9 PageID #: 5
`
`COLLECTIVE ACTION ALLEGATIONS UNDER THE FAIR LABOR
`
`STANDARDS ACT
`
`19.
`
`Pursuant to 29 U.S.C § 216(b), Plaintiff brings this action on behalf of all CVS
`
`Health Corporation and New Jersey CVS Pharmacy L.L.C. employees (a) who worked on the
`
`long-term nursing care facility vaccination project, as announced and mandated by parent
`
`company CVS, and were therefore eligible for and received the non-discretionary extra premium
`
`pay, and (b) whose overtime rates during periods of work on the vaccine project did not account
`
`for the extra premium pay as required by FLSA and its implementing regulations.
`
`20.
`
`Plaintiff and Collective Action Members are “similarly situated” as that term is
`
`used in 29 U.S.C § 216(b) because, among other things, all such individuals were eligible for and
`
`received the non-discretionary premium pay and such pay was inappropriately excluded from
`
`their regular rate for determining overtime payment, as statutorily required.
`
`21.
`
`22.
`
`Resolution of this action requires inquiry into common facts.
`
`These similarly situated individuals are known to the Defendants, are readily
`
`identifiable, and can be located through Defendants’ payroll records, which Defendants are
`
`required to maintain pursuant to the FLSA. 29 U.S.C. § 211(c); 29 C.F.R. § 516 et seq.
`
`23.
`
`Conditional certification of this case as a collective action pursuant to 29 U.S.C §
`
`216(b) is proper and necessary so that these employees may be readily notified of this action
`
`through direct U.S. mail or other means, including email, and allowed to opt-in for the purpose
`
`of collectively adjudicating their claims for overtime compensation, liquidated damages, interest,
`
`attorneys’ fees, and costs under the Fair Labor Standards Act.
`
`
`
`5
`
`

`

`Case 1:22-cv-00071-JJM-LDA Document 1 Filed 02/14/22 Page 6 of 9 PageID #: 6
`
`24.
`
`There are many similarly situated current and former CVS employees who have
`
`not been paid their statutorily-required overtime rates and who would benefit from the issuance
`
`of a court-supervised notice of this lawsuit and the opportunity to join it.
`
`COUNT 1
`
`VIOLATION OF THE FAIR LABOR STANDARDS ACT
`
`25.
`
`26.
`
`Plaintiff incorporates the foregoing paragraphs as if fully restated herein.
`
`CVS Health Corporation and New Jersey CVS Pharmacy L.L.C. are joint
`
`employers within the meaning of 29 U.S.C § 203(d).
`
`27.
`
`28.
`
`Plaintiff is an employee within the meaning of 29 U.S.C C 203(e).
`
`The Fair Labor Standards Act and its implementing regulations require that the
`
`regular rate of pay include all forms of remuneration. Section 207(e) outlines eight exceptions
`
`where payments to employees may not be included in the regular rate. Defendants’ premium rate
`
`paid for all hours worked on the long-term nursing care facility vaccine administration project
`
`does not fall into any of those exceptions. Additionally, FLSA implementing regulations make
`
`clear that the regular rate of pay includes “such extra premiums as night shift differentials… and
`
`premiums paid for hazardous, arduous, or dirty work.” 29 C.F.R. §778.207(b).
`
`29.
`
`CVS failed to include extra premium payments into the regular rate of pay for
`
`Plaintiff and all others similarly situated when calculating overtime rates. The failure to include
`
`this remuneration in overtime computations violates Section 7(a) of the FLSA, because
`
`Defendants’ employees are working overtime without being paid the statutorily required rates.
`
`29 U.S.C § 207(a).
`
`30.
`
`At all relevant times, Defendants had a policy and practice of willfully failing to
`
`pay Plaintiff and all Collective Action Members the legally required amount of overtime
`
`
`
`6
`
`

`

`Case 1:22-cv-00071-JJM-LDA Document 1 Filed 02/14/22 Page 7 of 9 PageID #: 7
`
`compensation for all hours worked in excess of 40 hours per workweek, in violation of FLSA.
`
`31.
`
`As a result of Defendants’ willful failure to compensate Plaintiff and the
`
`Collective Action Members at a rate not less than 1.5 times the regular rate of pay for work
`
`performed in excess of 40 hours in a workweek, defendants have violated FLSA, 29 U.S.C. §§
`
`201 et seq., including 29 U.S.C. §§ 207(a)(1), 215(a), and 29 C.F.R. §§ 778.104. Defendants’
`
`conduct as alleged herein constitutes a willful violation of FLSA within the meaning of 29
`
`U.S.C. § 255(a).
`
`32.
`
`Plaintiff and all others similarly situated are entitled to backpay as well as
`
`liquidated damages in an amount equal to their back pay. As a result of Defendants’ violations of
`
`FLSA, Plaintiff and all others similarly situated are owed overtime wages at a rate to be
`
`calculated by taking the difference between the overtime they should have received during the
`
`relevant time period and the overtime they did receive during the time period calculated using
`
`the incorrect regular rate. The exact amount can be readily determined using payroll and other
`
`employment records that Defendants are statutorily required to maintain under FLSA 29 U.S.C.
`
`§ 211(c).
`
`33.
`
`Plaintiff and all others similarly situated are entitled to back pay and liquidated
`
`damages in an amount equal to their back pay, as well as reasonable attorney’s fees, costs, and
`
`other relief as appropriate under the statute. 29 U.S.C. § 216(b).
`
`Prayer for Relief
`
`WHEREFORE, Plaintiff, on behalf of herself and all others similarly situated, prays for
`
`judgment as follows:
`
`a. Designation of this action as a collective action pursuant to the FLSA, 29 U.S.C. §
`
`216(b), and an order directing Defendants to provide to Plaintiff a list of all persons
`
`
`
`7
`
`

`

`Case 1:22-cv-00071-JJM-LDA Document 1 Filed 02/14/22 Page 8 of 9 PageID #: 8
`
`employed by them who were eligible for and did receive any extra premium pay for their
`
`work on the long-term nursing care facility vaccine administration project on at least one
`
`paycheck on which they also earned overtime compensation. This list shall include the
`
`last known address, email, and telephone number of each such person, so that Plaintiff
`
`can give such persons notice of this action and an opportunity to make an informed
`
`decision about whether to participate;
`
`b. A complete accounting of all the compensation Plaintiff and all others similarly situated
`
`are owed;
`
`c. A declaratory judgment that the practices complained of herein are unlawful under the
`
`FLSA;
`
`d. An award of recovered back pay and an equal amount in liquidated damages;
`
`e. An award of damages representing the employer’s share of FICA, FUTA, state
`
`unemployment insurance, and any other required employment taxes;
`
`f. An award of prejudgment and post-judgment interest;
`
`g. An award of costs and expenses of this action together with reasonable attorneys’ and
`
`expert fees, and an award of a service payment to the Plaintiff; and
`
`h. Such other and further relief as this Court deems just and proper.
`
`DEMAND FOR JURY TRIAL
`
`Plaintiff and all others similarly situated hereby demand trial by jury on all issues in this
`
`complaint that are so triable as a matter of right.
`
`
`
`
`
`
`
`
`
`8
`
`

`

`Case 1:22-cv-00071-JJM-LDA Document 1 Filed 02/14/22 Page 9 of 9 PageID #: 9
`
`
`/s/ Peter N. Wasylyk
`Peter N. Wasylyk
`Law Offices of Peter N. Wasylyk
`(RI Bar No. 3351)
`
`
`1307 Chalkstone Avenue
`
`Providence, RI 02908
`
`Tel: (401) 831-7730
`
`
`Fax (401) 861-6064
`
`
`
`Email: pnwlaw@aol.com
`
`
`
`
`
`
`:
`Nicholas A. Migliaccio (pro hac vice anticipated)
`Jason S. Rathod (pro hac vice anticipated)
`
`MIGLIACCIO & RATHOD LLP
`412 H Street NE, 3rd Floor
`Washington, DC 20002
`Tel: (202) 470-3520
`Fax: (202) 800-2730
`nmigliaccio@classlawdc.com
`jrathod@classlawdc.com
`
`Attorneys for Plaintiff and the Proposed
`Collective Action
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`9
`
`