Rite Aid And Workers Duel For Future Of Uniform Class Action
By Ryan Harroff
Law360 (July 21, 2021, 5:21 PM EDT) — Rite Aid is sparring in a California federal court with a class of 26,000 workers fighting for damages over the company’s alleged policy of making employees purchase their own uniforms, with the sides arguing in opposing motions over whether the class’s expert evidence should give the workers an early win or cost them their certification.
The class argued in its Tuesday motion that the expert evidence and undisputed facts demonstrate that the workers are entitled to a partial summary judgment ruling that the company must pay damages for making employees buy uniform clothing out of pocket. Rite Aid hit back the same day with a motion of its own asserting that further depositions and updates from the class’s experts weakened the class’s case to the point that it should be decertified.
“After peeling back the curtain in deposition, it is clear that plaintiff’s expert report is all smoke and mirrors,” Rite Aid’s motion states. “It is fundamentally flawed from a methodological perspective and fails to implement any of the safeguards utilized in established precedent to minimize a biased and manufactured outcome. Accordingly, this court should decertify the class.”
Rite Aid also pointed out in its decertification bid that the percentage of workers who thought they could wear a company-issued vest in lieu of buying uniform clothes “more than doubled” between the two versions of the same expert report. The class invoked the higher percentage in its earlier-filed motion and argued that it did not matter if the vest was an option because “there were no vests in 337 stores (71.5%), only one vest in 23 stores, and only two vests in 26 stores.”
At the center of the class action is Rite Aid’s “Team Colors” dress code, which, according to court documents, requires workers to wear navy blue tops and khaki bottoms in specific styles. The workers sued Rite Aid in March 2019, saying it violated California law by not reimbursing its employees when they purchased those clothing items for themselves, but Rite Aid argued that because store-issued vests are an alternative option, any purchased clothing items are a personal choice by the worker, rather than a requirement.
Randall Aiman-Smith, an attorney for the class, told Law360 on Wednesday that Rite Aid’s arguments are “just sophistry.”
“The reality is that their own written policy says in innumerable places, ‘If you are unable to come to work in Team Colors, you may wear a Rite Aid provided vest,'” Aiman-Smith said. “It doesn’t say, ‘You know what? We don’t care. Wear the team colors or wear our vest — up to you.’ They don’t say that. They don’t say it anywhere.”
Aiman-Smith added that the reported lack of vests also undercuts Rite Aid’s position since most stores do not have enough vests to go around if workers wanted to avoid buying their own uniforms, according to an internal survey from the company. He also invoked comedian Chris Rock when discussing the intent of the California labor statutes to shield workers from shouldering the cost of company decisions like uniform requirements.
“Their entire Team Colors approach is based on the idea that they want their stores to have a certain look,” Aiman-Smith said. “And you, the employee, are making minimum wage. Chris Rock, in one of my favorite observations, said, ‘You know what minimum wage means? It means we’d pay you less, but it’s against the law.’ So, we’re paying you as little as the law permits, and now we’re going to take some of that away by making you pay to work here. You can’t do that.”
A spokesperson for Rite Aid did not immediately respond to a request for comment.
The employees are represented by Randall B. Aiman-Smith, Reed W.L. Marcy, Hallie Von Rock and Brent A. Robinson of Aiman-Smith & Marcy PC.
Rite Aid Corp. and its subsidiary Thrifty Payless Inc. are represented by Jonathan Allan Klein, Sweta H. Patel and Thomas K. Hockel of Klein Hockel Iezza & Patel PC.
The case is Nucci et al. v. Rite Aid Corp. et al., case number 5:19-cv-01434, in the U.S. District Court for the Northern District of California.