Judge axes employee wage claims, keeps others in Wawa data breach case

A Pennsylvania federal judge has whittled down employees’ claims against convenience store chain Wawa Inc in litigation over a 2019 data breach of its point-of-sale systems.

U.S. District Judge Gene Pratter in Philadelphia on Wednesday granted Wawa’s motion to dismiss a set of claims over an alleged failure to pay assistant general managers overtime wages, while allowing employee claims related to exposure of personal and payment card information to proceed.

The litigation stems from a March 2019 incident in which hackers breached its Wawa’s point-of-sale payment systems and installed malware on its payment terminals and fuel dispensers, allowing them to access customer payment card data, the opinion said.

The employee track of the litigation includes claims on behalf of current and former Wawa employees, their spouses, and current and former Wawa assistant general managers, with Shawn and Karen McGlade as the named plaintiffs. There are also separate consumer and financial institution tracks.

“Shawn and Karen McGlade appreciate the Court’s recognition of the independent rights of employees to sue their employers when they fail to secure their personal information,” Donald Haviland Jr. of Haviland Hughes Law Firm said in an email.

Wawa and one of its lawyers from Morgan, Lewis & Bockius didn’t immediately respond to requests for comment Thursday.

In an amended complaint, the employee plaintiffs asserted five claims related to the data breach, including that Wawa breached its duty to protect employees personal information, which they were required to provide as a condition of employment. Wawa also failed to safeguard their personal payment card data, which employees used to buy discounted items, they alleged.

The employees also asserted two claims related to overtime pay that are separate from the breach claims. Wawa moved to dismiss all seven counts.

Judge Pratter allowed the breach allegations to proceed at this stage, finding the employees adequately pleaded those claims. He rejected Wawa’s argument that the data security claims related to the payment card information are duplicative of those in the consumer track. He also found that at this point, the allegations involving the exposure of employee information stored on Wawa computers can go forward.

Turning to the overtime allegations, he found claims based on an alleged misclassification of Wawa assistant general managers prior to 2015 and unpaid wages for “off-the-clock” work after 2015 to both be time-barred.

A three-year statute of limitations applies to claims brought under the federal Fair Labor Standards Act and Pennsylvania’s minimum wage law, the judge noted. Plaintiff McGlade filed his original complaint in January 2020, and timely claims related to misclassification would have needed to be filed by the end of 2018, he said.

As to the off-the-clock claim, Wawa argued that since McGlade was promoted in March 2017, claims based on when he was an assistant general manager needed to be brought by March 2020. The judge disagreed with McGlade that this claim was originally pled in the original complaint, instead holding that the claim is time-barred because it was not raised until a July 2020 amended complaint.

The case is In re: Wawa Inc Data Security Litigation, U.S. District Court for the Eastern District of Pennsylvania, No. 2:19-cv-06019-GEKP

For the employee plaintiffs: Donald Haviland Jr. of Haviland Hughes Law Firm

For Wawa: Gregory Parks of Morgan, Lewis & Bockius

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