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Judge Certifies Class of Kaiser Pharmacists

SAN FRANCISCO (CN) - A federal judge conditionally certified a class of pharmacists who accuse the Kaiser Foundation of stiffing them for overtime.

Lead plaintiff Rose Feaver sued Kaiser Foundation Health Plan and Kaiser Foundation Hospitals in February 2015, alleging violations of state and federal law, including the Fair Labor Standards Act, for failure to pay overtime compensation and to provide timely and accurate wage statements.

They seek class certification and damages for outpatient pharmacy managers at Kaiser pharmacies.

U.S. district Judge Edward Chen wrote in his Jan. 27 order that The case requires a two-step approach to determine whether putative class members are "similarly situated," and to make "factual determinations regarding the 'propriety and scope' of the class."

The first step "is to determine whether individuals 'similarly situated' to plaintiff actually exist and were 'victims of a common policy or plan that violates the law.'"

The plaintiffs submitted a series of emails, allegedly sent off-the-clock, or after hours, as evidence of work performed.

In opposing certification, Kaiser claimed that its compliance efforts, including written policies and training and denying outpatient pharmacy managers access to Kaiser's computer system from outside the office preclude a class of similarly situated individuals.

Kaiser also questioned whether the emails represent "compensable work-time," and the court expressed "skepticism" whether Kaiser has a duty to review blocks of emails on a regular basis.

In conditionally granting certification, Chen wrote: "While the court agrees these are significant questions, such issues are more appropriately addressed at step two, rather than the more lenient step one" of the "collective action certification analysis" and that "plaintiffs do not need to conclusively establish that collective action is proper because a defendant will be free to revisit the issue at the close of discovery."

He granted conditional certification based on the emails alone.

"Here, the 10/4/13 and the 1/15/14 email charts demonstrate that there is a prevalent practice of OPMs [outpatient pharmacy managers] engaging in off-the-clock work," Chen wrote. "Notwithstanding an alleged formal policy to the contrary, there is substantial evidence of a common practice of off-the-clock work. This common practice ... binds the proposed collective class together. The evidence is sufficient to satisfy the lenient standard for first-step conditional certification."

Chen ordered the parties to confer and file stipulated class notice by Feb. 16.

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