The Walmart Wage & Hour Train Rolls On

News came yesterday that Walmart lost its appeal of a $187.6 Million verdict in a Pennsylvania wage & hour case originally tried back in 2006.  The suit alleged that 187,000 workers were denied their right to rest and lunch breaks under Pennsylvania state law. The case was notable because Walmart attempted to distance itself from its own documentation of time records for its PA employees, claiming that the timesheets were too faulty to be trusted.

The Plaintiffs argued that local managers were under ever-increasing pressure to cut costs, resulting in chronic understaffing that led some workers to work through their breaks, whether or not they were still on the clock. Walmart claimed the records that showed when employees punched in or out were too inaccurate to be used as legal evidence.

The Pennsylvania Superior Court apparently wasn’t thrilled with the argument, noting that the company’s own internal investigations had revealed illegal “off-the-clock” work. According to the Plaintiff’s Attorney’s press release, Walmart also tried to argue that it had been denied due process because the trial court refused to let it question each individual class member regarding their hours worked.

It wasn’t a total loss, though – the Court said that some of the plaintiff’s attorney’s fees were counted twice, and would have to be recalculated. That’s a drop in the bucket compared the the verdict and add-on penalties levied against the company. For a great breakdown of how the Pennsylvania Wage Payment and Collection Law turned a $49 Million verdict into $187 Million payout, see Phillip K. Miles’s Lawffice Space post here.

A Walmart spokesman said they are looking forward to further appeal.

All the while, the world is waiting with bated breath to see what the Supreme Court has to say about Dukes v. Wal-Mart, the biggest wage-and-hour class action ever1, which finally made its way to Washington. Though it is on the tip of every employment lawyer’s tongue, the question before SCOTUS doesn’t have that much to do with the wages or hours of Walmart employees, and everything to do with the nature and future of class actions in American jurisprudence.

The question before the Court is not whether Walmart violated any wage laws, but whether a class of this size – all women who worked for Walmart between 1998 and now – is really ever fair. Walmart is arguing that it is impossible for every women it’s employed for the past 13 years to have enough in common to be certified as a single class.

Oral arguments in that case are over (and seemed to go well for the retailer), and the decision is expected early this summer.

1. I think. Am I wrong about this? [↩]

A Tale of Two Harassments

A couple of stories about employee harassment complaints came across my computer screen today, and provide a perfect illustration of just how important an employer’s response is in these situations.

The Inexcusable

First, Jon Hyman at the Ohio Employer’s Law Blog noted a $95 Million verdict in a single-plaintiff harassment case – probably the largest award ever received by a single employee plaintiff.

The facts in Alford v. Aaron Rents, Inc. are horrendous and gross. Not long after Ashley Alford started working for Aaron’s, her supervisor began making sexual advances toward her and giving her inappropriate nicknames. She called the company’s harassment hotline and never heard back. By the time she involved the police – more than a year later – saying the harassment escalated doesn’t really do it justice. She had been sexually accosted in the most degrading and deplorable manner I’ve ever seen in an employment case.

In deciding on damages, the jury was informed that Aaron’s made a $118 Million profit last year. That means that a jury decided that Ashley Alford deserved 80% of the money Aaron’s made in 20101.

The Test Case

Compare this story with the one delivered today by Business Management Daily about a female custodian at Xerox. Donna Johnson was cleaning a men’s restroom when another employee entered – ignoring the janitorial sign posted outside the door – and began using a urinal. She made some exclamation, and the male employee said that the janitors in Europe just ignored him and went about their business2. Johnson left the bathroom and complained to HR.

Xerox responded by immediately counseling the world traveler on the meaning of “closed for cleaning” and transferring Johnson to a different post. When Johnson sued anyway, the court threw the case out saying that Xerox did everything right under the circumstances.

The Point

If I’d just told you about the Xerox case, I know a lot of you would probably think they went a little overboard investigating a sexual harassment complaint based on a man using a urinal. And even more of you are probably calling BS on me comparing the facts of these two cases at all. One of them is horrendous, the other seems relatively innocuous. But look at the Aaron’s case again. It didn’t start out as blatant sexual abuse. It started out as bad-but-not-extraordinary harassment. Maybe even actions that could be “misconstrued” as harassment when “I didn’t mean anything by it.”  Sort of like walking into a toilet when you know a lady’s in there cleaning.

The point is – you as a business person do not know the difference between a simple error in judgment and the first signs of a dangerous proclivity. I do employment law, and I don’t even know the difference. That’s why every allegation of sexual harassment – every single one - has to be investigated quickly and taken seriously. It may not end in discipline or even counseling. It may not involve relocating workers. But employees need to feel like their companies are protecting them from what they see as bad behavior.

And so do the courts. The BMD story points out that even though the Xerox case doesn’t really smack of harassment, the employee still sued. If Xerox hadn’t acted as it did, that seemingly-frivolous lawsuit would still be costing the company real money – in attorney’s fees and settlement payments.

If Ashley Alford had received an appropriate response from Aaron’s harassment hotline3, would she have been spared from the horrible things that eventually happened to her? Nobody knows. But if she had, and her supervisor had been disciplined early on, somebody would probably say they were too touchy about harassment and needed to lighten up.

I’ll take a little criticism that I’m too tough on harassment complaints if it means I get to keep $95 million in the bank.

1. The award will be capped at $41 Million, and Aarons is appealing [↩]
2. Europe? Really? [↩]
3. Or any response for that matter. Why in the hell do you have a hotline if youre not going to call people back? [↩]

Breaking: Kind-of-Sleazy Industry Fires Woman for Not Being Hot Enough

So, I don’t know if it’s the warm weather, or the recent supermoon, or just that I have a 2-month-old daughter and these things are sort of front-and-center all of the sudden1 , but there seems to be a rash of news stories about PG-13 businesses canning women for various physical appearance issues that just make a new dad’s stomach turn a little. 

First, Eric B. Meyer over at The Employer Handbook posted about a lawsuit filed by the EEOC on behalf of a woman who was fired from “The Wild Beaver Saloon” (that’s a restaurant – seriously…) because she became pregnant.

Then one of my coworkers shot me a story about waitresses in Atlantic City who were let go after their casino changed hands, and changed (quite drastically) the uniforms they were required to wear. New management broke the news by making the waitresses sift through a bunch of uni’s strewn about a room – all sizes 2 through 4, apparently – and pick one to try on, and then have their photo taken from various angles.

Not long after, according to the waitresses’ age- and sex-discrimination lawsuit filings, they were let go for failing to properly fit in with the new sexy look the establishment was going for.

Shocker.

Look, I’m not going to dwell on the benefits or detriments of these types of places, or whether sex should be used to sell food. I’ll leave that to the city of Evanston, IL. My concern is that places like these seem to feel like termination is the best course of action when trying to change the hotness factor in a workforce, and in just about every circumstance I can think of, that’s an employment-law-no-no.  There are exceptions where youth or sex are bona-fide occupational qualifications, but outside of a strip club dancer2 , you’re not going to win on that argument. 

Put simply, you don’t have to be a 22-year-old part-time model to serve booze. Or wings, as Eric Meyer points out in his post:

Just ask Hooters which, many years ago, settled a lawsuit brought by men who claimed that they were denied jobs with the restaurant chain.

If that’s not enough of a cautionary tale, I don’t know what is. Except maybe a strip club getting sued for firing a waitress because she’s old.

Also worth noting – in the case of both the strip club and the Wild Beaver, we know about these cases because the EEOC sued on the employee’s behalf.3 The EEOC loves these cases, and the press releases that go along with them.

It shouldn’t have to be said, but don’t fire4 an employee because they’re not hot or young enough for you or your clients.  And if your somewhat-sleazy restaurant/casino/bar/internet cafe is going to fire anybody because they’re too old, or too ugly, please call me. I could use the billable hours.

1. did I mention that I have a 2-MONTH-OLD-DAUGHTER?!! [↩]
2. the NC-17 version of our PG-13 friends… [↩]
3. Not even a class of plaintiffs – just single employees! [↩]
4. or refuse to hire; or do anything else [↩]