Just when you start to think that Wal-Mart is too easy of a target, or maybe — just maybe — they might be starting to clean up their act a little bit, a story comes along that makes you realize that all of the bad press Wal-Mart earns might be all it’s cracked up to be and then some. The retail giant is already keeping lawyers busy across the country in an effort to stave off the worst of their practices, but the latest set of accusations against them would be beyond the pale — that is, if they were leveled against anybody but Wal-Mart.
So what are the latest accusations that has everyone so riled up? According to a Bloomberg News story, a group of current and former cashiers in Texas has asked a federal judge for a restraining order to prevent Wal-Mart management from attempting to stifle participation in a lawsuit seeking to recover unpaid wages, where workers claim they were forced to work “off-the-clock.” This lawsuit is one of over 40 lawsuits claiming workers weren’t paid for off-the-clock time they worked that pending as of April 2006 (See Washington Monthly article.)
On August 4, notices were sent out to over 100,000 workers inviting them to join the case of Adcox v. Wal-Mart Stores Inc., No. 3:04-cv- 00633, U.S. District Court, Southern District of Texas (Galveston). (In a lawsuit for unpaid wages, workers generally have to opt-in, meaning that they have to affirmatively join the lawsuit if they want to join in any recovery, so these notices told them about the lawsuit so the workers could choose whether or not to opt in by signing and sending in the enclosed forms.)
Once Wal-Mart workers started receiving the notices, that’s when all hell broke loose, according to some of the affected employees. According to an affidavit filed with the court, Anette Thomas, a cashier in Kingwood, Texas, says the store manager and assistant manager at Store No. 3579 were threatening workers with firing if they joined the lawsuit. The managers are also “calling in every associate who works when they report for work,” with “each associate…made to log on to the computer to a section called The Wire, where they must complete an electronic survey stating they do not work off the clock.” After finishing the electronic survey, each individual associated was instructed to “handwrite a statement saying they do not work off the clock,” Thomas said. Managers told the associates “if they do not compete the electronic survey in The Wire and execute the handwritten statement they can be written up and/or terminated,” she said.
Former employee Latasha Walters reports a similar experience in her affidavit filed with the court on August 15. She said a personnel representative of the Lancaster, Texas, Wal-Mart told her “if I filled out the opt-in notice and mailed it in, I would not be eligible for re-hire at that store or any Wal-Mart store.” The personnel representative “also informed me that she was having all cashiers at her store who received similar opt-in packets to bring them into the store and turn them over to her,” Walters said.
If this is going on, it’s retaliation, and it’s against the law. The Fair Labor Standards Act makes it illegal to “discharge or in any other manner discriminate against any employee because such employee has filed any compliant or instituted or caused to be instituted any proceeding under or related to this Act.” Section 15 (a)(3). Even a defense lawyer whose firm who owns Wal-Mart stock says, “It’s bad if you’ve got store managers doing it….[s]tore managers from Wal-Mart have better things to do than to thumb through legal filings.” (See Bloomberg News article.)
Thus far, only 1500 have joined the lawsuit since the notice went out in early August, but who knows how many would like to join if they didn’t fear for their jobs. And if they lose their jobs, they may not have too many options, since as the workers’ lawyer, Russell Lloyd, points out, “In some places, Wal-Mart is the only job in town because they’ve run everyone else off.” (See Bloomberg News article.)
We’ll know soon whether the judge believes there’s sufficient evidence of the workers’ allegations — the hearing to make Wal-Mart stop its intimidating practices is tomorrow (August 23). Wal-Mart spokesman John Simley said the claims have “no merit and we plan to demonstrate that in court on Wednesday.” (See Bloomberg News article.)
Workers have until November 3 to join the lawsuit — that’s plenty of time for both good news and bad news to spread throughout Texas, and for workers to determine whether or not to trust that the legal system will protect them. Wal-Mart often makes the claim that a chain of its size is bound to have some rogue managers operating unlawfully, but that a few isolated instances do not a widespread illegal practice make. (See Washington Monthly article.)
Even if it is only a handful of rogue managers who are out of line in this Texas case, however, the damage may already be done if the court does not take a firm stance protecting Wal-Mart cashiers who want to participate in this case. Workers throughout Texas, and in all of the other cases around the country — as well as their lawyers — will be paying attention.