Posted on January 15th, 2008 by Tim Eavenson | No Comments »
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A couple of months ago, Wal Mart Assistant General Counsel Miguel Rivera made it clear via a memo to its outside counsel that the legal profession was anything but safe from its policy of exporting efficiency on its suppliers. (They put a moratorium on across-the-board rate hikes, citing skyrocketing associate salaries. Really.)
Well, now it seems the Supreme Court is no exception; the retail giant settled an ADA lawsuit yesterday that would have given the Court the chance to answer a long-pondered question – whether the ADA requires employers to place disabled employees in available positions or simply allow them to participate in the application process. The Court dismissed the case, and the question remains unanswered.
To me, it’s just more proof that, for all its benefits, efficiency (economic or judicial) can still leave you so unsatisfied.
Posted on November 14th, 2007 by Tim Eavenson | No Comments »
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The latest decision in Wal-Mart’s ongoing legal battles with its employees is in, and this one is probably going to increase the legal flies the retail giant will be swatting at in the near future.
A Pennsylvania judge has tacked $49 Million in attorney’s fees onto a $141 Million judgment for unpaid overtime against the nation’s second largest employer. The plaintiffs (187,000 of them) were awarded $141 Million earlier this year.
This has got to be tough for a retailer that doesn’t even like paying its own attorney’s full price.
Just based on its two recent wage-and-hour suits, Wal Mart is down about $353 Million, and it is marking a distinct shift in employment litigation, with major L&E firms noting the biggest danger to employers is no longer discrimination, but wage and hour class actions.
Wal Mart, of course, is dealing with both.
On top of this $181 Million, and the California lunch-break judgment earlier this year for $170 Million, Wal Mart is facing two gender discrimination class actions, one of which is currently open to 1.6 million current and former female employees (that makes it the largest civil rights action in history, for anyone keeping score), a suit over its refusal to add birth control to its health benefits, and a bevy of single-plaintiff actions too long to list.
More info can be found on the company’s Wikipedia page. The Arkansas giant is appealing all of the judgments, of course, but they’re probably not reeling as much as you’d think – Wal Mart’s 3d Quarter revenues clocked in just under $3 Billion. Yeah, with a B.
Posted on July 19th, 2007 by Tim Eavenson | No Comments »
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How will all the destitute residents of East Hampton afford their hospital stays?!
Ok, that’s a cheap shot, we know. There’s plenty of places in Suffolk besides the Hamptons. Still, seems an odd place for championing healthcare reform to us, but what do we know?
Anyway, remember the Maryland Fair Share Act? Sure you do. It was the “pay or play” healthcare law that would’ve required Wal Mart and other enormous retailers (so, just Wal Mart) to pay a specified amount of their employee’s health benefits or pay into a State-run subsidy program. Remember how it was crushed, like a bug on the ERISA-preemption windshield, by the 4th Circuit?
Well, the bug-juice seems to be leaking onto New York. It’s first Fair Share attempt just got shot down, apparently using the same arguments the Retail Industy Leaders of America used to win in Maryland earlier this year.
Roy Harmon explains what happened over at HealthPlanLaw.com.
The big deal now, according to Paul Secunda at Workplace Prof Blog, is what happens to the Massachusets universal healthcare plan. According to Secunda:
I am now more interested to see if the Massachusetts universal health care plan suffers the same fate. The best thing going for that law is that apparently RILA doesn’t believe it causes the same harm to its members as the Maryland and Suffolk County law and has not yet challenged it on ERISA preemtion grounds.
If the only difference between the Fair Share Acts and the Massachusetts UHC plan is that RILA hasn’t bit yet, then we’re in for a serious fight. RILA’s press release doesn’t make it sound like they’re too afraid to go again. The Fair Share provisions are definitely a big piece of the Massachusetts puzzle. And with other states like California possibly signing onto the Massachusetts mantra, this could get real interesting real fast.
Harmon agrees, focusing on what these decisions mean for any law trying to tax an employer for healthcare coverage under the RILA rulings’ interpretation of ERISA preemption:
The idea appears to be that, so long as the tax is not imposed on ERISA plans and does not explicitly suggest a connection with such plans, some form of “pay or play” regime may be imposed on employers as a part of healthcare financing. After Retail Industry Leaders Association v. Fielder, — F.3d —-, 2007 WL 102157, C.A.4 (Md.) January 17, 2007), however, these proposals deserve careful reconsideration.
While [previous decisions] give good reason to believe that lawmakers may impose surcharges on patients or providers, the Fourth Circuit opinion in the RILA decision … poses a substantial risk to any notion that States may look to employers to supply healthcare financing for State healthcare programs. To the extent [the Court] abandons “literal textualism” and looks to the Congressional purpose of ERISA’s enactment, little can be gleaned that would suggest that ERISA will peacefully co-exist with a multiplicity of State-based employer tax regimes dedicated to the funding of multiple State healthcare programs.
- Another Fair Share Law Bites ERISA Preemption Dust
