A Walgreens call center employee can proceed with her class action lawsuit claiming the drugstore giant requires employees in its call centers to work off the clock.
US District Judge Virginia Kendall ruled plaintiff Leyla Marie Cortes Olazagasti can continue with her legal claims against the country's second largest retail drug store chain, under the federal Fair Labor Standards Act (FLSA).
Olazagasti began working in Walgreens’ call center in Orlando, Fla., in November 2019. She filed suit against her employer in June 2020, as the named plaintiff in a class action lawsuit filed by attorneys with the firms of Anderson Alexander PLLC, of Corpus Christi, Texas, and Stephan Zouras LLP, of Chicago.
In her suit, she claims call center employees’ shifts start when they are ready to take their first call.
Before taking that call, however, employees are required to start up their computers, log into several programs, and make sure the programs are running correctly – a process that can take up to 20 minutes. This set-up process has to take place before the shift start time, the suit says. If an employee is not ready to take their first call at the time their scheduled shift starts, they may be subject to discipline.
If employees encounter technical problems, they are not paid for time spent troubleshooting, which Olazagasti claims can take anywhere from 10 minutes to an hour.
The plaintiffs are seeking to expand the action to include potentially thousands of others who work at call centers operated by Walgreens.
Walgreens moved to dismiss the suit, saying Olazagasti failed to state a claim under the FLSA. The FLSA sets the hourly minimum wage and requires employers to pay time-and-a-half to non-exempt employees working more than 40 hours per week.
Kendall disagreed with Walgreens’ contention that the FLSA claim is insufficiently pled and states no facts.
“To the contrary, the Amended Complaint alleges that Olazagasti is an hourly worker, that she performed various required tasks after having already worked 40 on-the-clock hours, and that she was not paid for the time [spent] performing those tasks. That is sufficient to state an FLSA claim,” Kendall wrote in her Dec. 11 opinion. “Now, whether those tasks qualify as principal activities for which Walgreens must compensate Olazagasti is another matter that the court does not reach here due to lack of briefing.”
Kendall observed that the Portal-to-Portal Act states employers do not have to compensate workers for commuting and other tasks that take place before or after an employee’s “principal activity or activities.” The question of whether booting up the computer, logging on, troubleshooting and the like are part of Olazagasti’s principal activities is one to be settled in later proceedings, she wrote.
It is also possible Walgreens may argue a de minimis exception to the FLSA, Kendall mused. Through this exception, non-principal tasks that take only seconds or minutes may not need to be compensated. Arguing that the exception applies would be Walgreens’ burden, should the company take that route, the judge said.
Kendall dismissed another claim brought in Olazagasti's suit, a count of unjust enrichment under Florida common law. Her lawyers argued she and other similar workers are entitled to unpaid straight time wages. Kendall observed that she had already argued she was entitled to overtime for the same hours, pre-empting her common law claim. That claim was dismissed without prejudice.
Walgreens is represented in the action by attorneys with the firm of Fox Rothschild, of Chicago.