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Walmart’s Black Thursday Hits Paducah

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James Vetato planned to spend Black Friday wearing out shoe leather on a picket line at the Southside Walmart in Paducah, Ky.

“Now I’ll be there Thanksgiving night, too,” Vetato said. “Walmart has announced it will be open at 8 p.m. Thanksgiving night, which will prevent a lot of the associates from spending the holiday with their families.”

Vetato, 47, is an organizer with OUR Walmart—Organization United for Respect at Walmart—a national association of current and former Walmart employees, several thousand strong, who will be walking picket lines and striking at dozens of Walmart stores across the country on Turkey Day and Black Friday.

OUR Walmart wants to shine a national spotlight on Walmart’s abuse of its workers, Vetato said. The organization chose the day after Thanksgiving because it is the busiest shopping day of the year.

We are fighting to win respect and improve working conditions for all associates.

Vetato, who worked at the store he will be picketing, hopes OUR Walmart will become a union.

Before I worked at Walmart I wasn’t that big on unions. I didn’t think a union was a bad thing. I just didn’t know anything about unions. Now I think every workplace should be unionized.

According to Vetato, OUR Walmart has about 15 members in historic Paducah, where the Tennessee and Ohio rivers merge. “We’re relatively new so we’re not that big. But our numbers are growing.”

Vetato said the United Food and Commercial Workers (UFCW) union is providing financial backing and other valuable help to OUR Walmart, some of whose members, including Vetato, have demonstrated at Walmart corporate headquarters in Bentonville, Ark.

AFL-CIO-affiliated unions support Vetato’s group, too. “We stand in solidarity with the Walmart workers and will be glad to help them in any way we can,” said United Steelworkers (USW) Local 9447 President Jeff Wiggins, who is also president of the Paducah-based Western Kentucky AFL-CIO Area Council.

Vetato said fear is keeping more Walmart workers from joining OUR Walmart.

There aren’t that many jobs around here. But Walmart has pushed people so hard, they have decided enough is enough and they are not going to take it anymore.

Vetato said management drove him to quit the Southside store after two years.

It all started after I was speaking with an associate in the back room who was complaining about the way things were. I said things would be better if everybody stood together and took our problems to management.

A manager overheard the conversation, according to Vetato. “He said he was sick of my kind coming into the store and undermining what he was doing. He doubled my workload and cut my hours.”

But what really made me say ‘enough is enough’ was when he made some inappropriate comments about my 15-year-old daughter. I complained to the store manager and he told me he didn’t have time to micromanage the store.
James Vetato and son.

Vetato has worked at odd jobs since he left Walmart in October 2011. “When I apply some place and say I worked at Walmart and they call Walmart, I suspect Walmart won’t give me a good recommendation,” he said.

Meanwhile, the OUR Walmart actions began in October in Southern California when, for the first time ever, employees went on a one-day strike. Said Vetato:

Across the country, Walmart employees have filed many, many unfair labor practice charges against the company because of the way the company is treating them. Walmart refuses to address our concerns, even those that would help the company. If you speak out, you face retaliation.

Walmart, which is fiercely anti-union, has put out training videos aimed at discrediting OUR Walmart, according to Vetato. “They say all we are trying to do is take your money and get your personal information and cause trouble.”

Vetato said Walmart’s current business model includes canceling profit sharing for associates, increasing their health care costs by 36% and reducing their hours.

They are really trying to push full-time and older employees out the door and replace them with younger and part-time people.

This article was originally posted on AFL-CIO NOW on November 21, 2012. Reprinted with permission.

About the Author: Berry Craig is a recording secretary for the Paducah-based Western Kentucky AFL-CIO Area Council and a professor of history at West Kentucky Community and Technical College, is a former daily newspaper and Associated Press columnist and currently a member of AFT Local 1360.


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As One Wal-Mart Warehouse Strike Ends, Another Snowballs

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Early on Friday, three dozen non-union workers at a large Walmart warehouse near Riverside, Calif., ended a 15-day walkout protesting poor working conditions. But outside of Chicago, another group of Wal-Mart warehouse workers continue to strike and have called for hundreds of supporters to join them in non-violent civil disobedience at a rally at the huge facility on Monday.

The southern California workers, most of whom earn minimum wage, cited family financial problems as one reason for discontinuing the strike. The decision was made upon their return from a six-day, 50-mile “WalMarch” to downtown Los Angeles to call attention to appalling safety problems and working conditions in the vast Inland Empire warehouse industry.

The spontaneous California work stoppage helped inspire the Sept. 15 walkout by 30-plus workers at Wal-Mart’s huge Elwood, Ill. warehouse. The Illinois workers were angry about poor working conditions and apparent retaliation by their employer, a Wal-Mart contractor, against four workers who filed a lawsuit over subminimum wages.

The lawsuit is the sixth filed by Elwood workers in three years. Three prior suits have resulted in settlement payments to workers. The latest claims that Roadlink Workforce Solutions–one of four subcontractors providing long-term “temporary” workers to Schneider Logistics, which operates the warehouse for Wal-Mart–frequently failed to pay overtime and minimum wage, in violation of federal, state and local laws.

Workers at both the Illinois and California warehouses have similar complaints: wage theft, harassment, safety hazards, being denied breaks, and working in extreme temperatures with inadequate water. California’s workplace safety agency, CalOSHA, is investigating the Southern California warehouse in response to a complaint filed by workers about working conditions and excessive heat. It may soon pursue an additional complaint about repetitive motion injuries.

Workers have been less successful in getting their complaints heard directly by Wal-Mart. They face a complex structure of authority and responsibility created by the company, with layers of contractors between workers and Wal-Mart management. In response, workers have filed numerous requests with Wal-Mart to enforce its code of conduct throughout its supply chain.

About ten days ago Walmart told some news outlets, including Huffington Post, that it would review contracts and look into third-party monitoring of all contractors, a small step towards taking responsibility. But it did not sign any agreement with either group of strikers.

And when the Southern California workers returned to the job Friday–receiving high-fives from non-striking workers–they found that some of the safety problems remained. The workers alerted management, which shut down the unsafe areas of the warehouse.

“They feel they have a stronger voice now over working conditions,” says Elizabeth Brennan, spokesperson for Warehouse Workers United, a project of Change To Win, a union federation trying to improve work for the 85,000 people employed at warehouses in southern California. While they feel they’ve won a big victory–“a step forward, not an end-all solution,” Brennan says–they also anticipate possible retaliation, even though it would be illegal.

That’s what the Illinois workers say happened after they filed a wage theft suit on Sept. 13 against Wal-Mart with the assistance of Warehouse Workers for Justice, a project of the United Electrical Workers (UE). Plaintiff Philip Bailey says that management fired him and the other named plaintiffs the next day, then changed its mind and suspended them without pay.

After losing his job in Detroit last year, Bailey came to the Chicago area to seek work because there were jobs available in the warehouses. This is partly due to very high turnover rates, which can pose a barrier to organizing. In the end, he says, it was a group of workers who had managed to last a half year or more who formed the core of the protest action.

“What we have in common is we’re pretty marginalized and desperate,” Bailey says. “People are fed up in there and not willing to give up without a fight. The prospect of working these low-paying jobs for long hours became scarier than risking losing the job to improve it. People realized we won’t get anything until we stand together.”

In September, about 40 workers signed a petition “about unsafe equipment, extreme heat, and taking away breaks, making [shifts last] 6 or 7 hours,” says veteran warehouse worker Ted Ledwa. On Saturday, after Bailey and some other workers were fired and then suspended, a group of the petitioners tried to take their demands to management.

“We had to walk around the entire warehouse to collect everyone,” Ledwa says, “and all the time management was saying we were trespassing and had to leave. All we wanted to do was present the petition to management. As we came around the corner, managers with these riding forklifts cut our group in half, but we continued to walk. They told us we were going to be escorted out of the building by the police. They refused to take the petition. My manager said that we don’t want to mess with him. We said we didn’t want to mess with anybody. We just wanted someone to take the petition and hear our grievances. Their answer is the police are on their way. You’re going to be arrested.”

Managers were reportedly erratic in their response. Initially, Ledwa says, the petitioners were also fired, but managers later called to say they had been suspended. Now, both the suspended plaintiffs and the suspended petitioners, joined by a few other workers, are striking together over unfair labor practices, including discharge for lawful collective action. Ledwa believes those who kept working were sympathetic but afraid of losing their $10-an-hour jobs.

“Management uses threats and intimidation as part of their daily routine,” he says. “I’ve worked at several warehouses, and I’ve never seen it so bad. They have no respect for the people. They say if you can’t do the job, we’ll get someone else. There’s a constant threat. They’re always trying to pit people against each other, to create animosity among their workers. I’m tired of it.”

So for now the strike continues, picking up support, such as from Chicago teachers, recently on strike themselves. Many public-school teachers see a common enemy in the Walton Family Foundation, the charitable group run by Wal-Mart’s founding family, which promotes school privatization.

And the warehouse strike is a worrisome development for Wal-Mart, a company that “has made distribution the heart of its business,” as Nelson Lichtenstein writes in The Retail Revolution: How Wal-Mart Created a Brave New World of Business. Wal-Mart’s super-efficient system of delivering goods only as needed, while stores carry minimal inventory, keeps costs low. It relies on sophisticated management and technology but also on brute, crude exploitation of workers. But this system is vulnerable to disruption, a threat especially potent now as big retailers prepare for the lucrative Christmas selling season.

Strikers at these two warehouses face both a big antagonist and big barriers to unionizing: Under current labor law, it’s perfectly legal for Wal-Mart to simply stop using any contractor whose employees join a union. As a result, workers have instead focused on getting Wal-Mart to enforce its own standards upon its contractors. But the strikers’ example could plant the idea in the minds of other warehouse workers that collective action can bring power and improvements at work. And that seed could grow into a movement for change among workers who need it badly.

This blog originally appeared in Working In These Times on October 1, 2012. Reprinted with permission.

About the Author: David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at davidmoberg@inthesetimes.com.


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Lawsuit Sheds Light on Murky and Dangerous Warehouse Sector

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Working In These Times has frequently covered the warehousing industry and the way that complicated layers of different companies using, owning, operating and staffing warehouses make the sector ripe for labor abuse.

A motion for sanctions filed August 23 in a workers’ class action lawsuit against southern California Wal-Mart warehouses sheds more light on this structure and alleges that defendant Schneider Logistics failed to provide legally mandated evidence to avoid culpability for workers’ wages and working conditions.

Last October, workers affiliated with the group Warehouse Workers United filed a class action lawsuit in U.S. district court in California alleging labor law violations at Mira Loma warehouses operated solely for Wal-Mart stores. The lawsuit names Schneider Logistics Inc. (SLI) and its subsidiary Schneider Logistics Transloading and Distribution (STLD) along with the companies Impact and Premier, which hired people to staff the warehouses. Schneider took over operation of the warehouses in 2006.

The initial complaint said:

Plaintiffs bring this action on behalf of themselves and others similarly situated to recover the wages that defendants stole — and are continuing to steal — from them in violation of federal and California law. Plaintiffs also seek redress for other consequences of defendants’ unlawful conspiracy, including defendants’ wrongful scheme to hide and then cover up the extent of their wrongdoing by failing to keep mandatory payroll records, falsifying records of hours worked and compensation owed, and concealing, denying and/or misrepresenting to the workers the amount of their earnings and on what basis these earnings were calculated.

A key question is whether Schneider or STLD directly employed–and is therefore responsible for the working conditions of–the plaintiffs, including lead plaintiff Everardo Carrillo. The plaintiffs allege that Schneider is their “joint employer” along with the other defendants.

Schneider Logistics initially argued that it had “no connection with or responsibility for the operation, oversight, or supervision” of the workers at the Mira Loma warehouses, as quoted in the recent motion. It notes that Schneider Logistics Secretary-Treasurer Amy Schilling signed a sworn declaration saying the company had “no business or contractual relationship” with co-defendants Impact and Premier. And the motion alleges that Schneider sought to continue this image by failing to turn over documents during the discovery process that would have indicated otherwise.

In April Schneider attorneys responded to a discovery request without actually looking for the requested documents, according to the motion. In other words, they allegedly were either sloppy or intentionally avoided turning over evidence to which the plaintiffs have a legal right.

This became clear when documents turned over by Impact and Premier included highly relevant Schneider documents which Schneider attorneys had specifically said did not exist. The motion notes:

Schneider has now produced thousands of documents it previously claimed did not exist, including over 12,100 pages of personnel files it maintained for the Impact and Premier class members (whom it claims not to jointly employ), and the workplace rules and training requirements it imposed on all class members.

The plaintiffs say the new documents show that “Schneider’s top managers knowingly made material false statements” to the court, including claims that the warehouse employees are not subject to Schneider employment policies and that Schneider does not keep personnel files on them or set productivity quotas. The documents showed that Schilling herself signed contracts with Premier and Impact, on behalf of STLD and “its affiliates.” Meanwhile, Schilling is also vice president and controller of Schneider National, the parent company of the other Schneider groups, which actually negotiated the contracts with Impact and Premier.

Once it was clear that Schneider did indeed have contracts with Impact and Premier, General Manager Vince Redgrave told the court that the contracts gave Schneider no say over work terms or conditions. The court ordered that Schneider actually produce the contracts, and when it did, as the motion says, “they proved the exact opposite of what Vince Redgrave had testified.”

The federal district judge, Christina Snyder, wrote in a preliminary injunction ruling that the “contracts dictate nearly every material term of plaintiffs’ employment including how Impact and PWV (Premier) must conduct pre-employment screening and new employment training.”

The documents also showed that, contrary to Redgrave’s previous testimony, Schneider did set specific productivity quotas for the warehouse workers and in fact complained to Premier when the rate of cases unloaded per hour dropped. Schneider officials also talked about how to remedy Impact’s “low productivity levels.”

Warehouse worker groups have long argued that unrealistic and escalating productivity quotas are among the things that lead to high chronic and acute injury rates in warehouses. In July, Warehouse Workers United filed a complaint with California’s Occupational Safety and Health Administration office.

The recent motion also alleges that Schneider or its attorneys did not order employees to preserve emails relevant to the case, as is standard required legal procedure. It says the company has an automatic delete email function for emails from the Mira Loma warehouses, meaning emails are deleted automatically after a short period of time, and employees also have “absolute discretion” over whether to save or delete emails. The motion says Schneider was slow to issue a memo instating a “litigation hold”—meaning employees should preserve relevant communications. And it alleges even after such a memo was issued, Schneider never enforced it.

The motion also alleges that Schneider destroyed and denied the existence of security camera footage that would aid the plaintiffs’ case. The motion demands that Schneider turn over video footage and also a log of any video that has been destroyed since October 2011.

The motion asks that the court make note of Schneider’s alleged misconduct, tell Schneider that further misconduct will result in sanctions, and provide relevant attorneys’ fees and costs to the plaintiffs. It notes that the court could also decide to inform a jury of Schneider’s false statements and other discovery violations, and asks that the court establish a “rebuttal presumption” that Schneider is indeed a “joint employer” of the plaintiffs.

Overall, the lawsuit is part of WWU’s and individual workers’ ongoing campaign to improve conditions in warehouses and shed light on the complicated employment structure that allows major companies like Wal-Mart to benefit from the low-paid, dangerous work of a largely temporary workforce.

This blog originally appeared in Working In These Times on September 4, 2012. Reprinted with permission.

About the author: Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist writing for publications including The Washington Post, the Chicago Reader and The Progressive. Her most recent book is Revolt on Goose Island.


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Wal-Mart: One More Reason Why We Need Equal Pay

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JenyaCassidy.phpLast week, I talked with a cashier at a Ralph’s grocery store in Orange County, Calif. She told me she lives with and supports her 82-year-old mother and her disabled 56-year-old sister. She represents a growing group in the United States: a working woman who is head of household and also a family caregiver.

But with the rise of the low-wage retail giants like Wal-Mart, she is also part of a shrinking group: a union worker with rights on the job, health benefits, paid sick days, vacation and possibly a pension or retirement fund. And with a union contract, she won’t be arbitrarily paid less than a man doing the same job with the same seniority.

Wal-Mart = Unequal Pay

In June 2011, a sex-discrimination lawsuit brought by 1.5 million current and former female employees of Wal-Mart reached the Supreme Court, bringing national attention to the company’s policies of paying women less than men in every job category and promoting women less – often in spite of better job performance. The Court decided against allowing the women to pursue the lawsuit as a single class but Wal-Mart will likely have to face these claims individually for years.

Wal-Mart’s treatment of women workers is bad news for everyone fighting for equal pay. As the largest retailer in the United States and the world, Wal-Mart “leads the way” in setting standards and has the effect of depressing retail wages in every community where it opens shop. Right now, average pay for all Wal-Mart workers is $8.81 an hour and “full-time” is considered 34 hours a week. Imagine the woman I talked to at Ralph’s trying to support her family on that income in
California.

Equal Pay Day

Yesterday, we marked Equal Pay Day, which symbolizes how far into 2012 women must work to earn what men were paid in 2011. Women now earn 77 cents for every dollar men earn. We have not made a lot of progress since Equal Pay Day was first instituted back in 1996 when women earned 73.8 cents for every dollar men earned. I think the rise of companies like Wal-Mart and the demise of union jobs have a lot to do with our lack of progress in this area.

Let’s recommit to defeating Wal-Mart and what it stands for: low wages, bad working conditions, unequal treatment of women workers, union busting and a
business model that hurts the ability of working families to survive.

More and more families depend on a woman’s paycheck to put food on the table and a roof overhead. Two-thirds of women are either dual earners or the heads of households. Women are also carrying out the bulk of caregiving duties in families. We need decent wages and flexible workplaces with paid sick days and family leave. While Equal Pay Day is still fresh in our minds, let’s commit to getting involved in raising the standard of living for working women everywhere.

Let’s build the movement for workplaces that support caregivers. Let’s start with Wal-Mart.

For information on how to get involved in supporting positive change at Wal-Mart, go to http://makingchangeatwalmart.org/ For information on local campaigns advocating for paid sick days and paid family leave go to http://familyvaluesatwork.org/.

This blog originally appeared in AFL-CIO Now blog on April 18, 2012. Reprinted with permission.

About the Author: Jenya Cassidy is a regular blog contributor to MomsRising.org.


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Wal-Mart’s Rob Walton Wins JWJ’s Scrooge of the Year

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Image: Mike HallHe beat out some tough competition, but Rob Walton, chairman of Wal-Mart’s board of directors, is the top vote getter in the 11th annual Jobs with Justice (JWJ) Scrooge of the Year election.

Walton deemed a “billionaire bully” by Brave New Films, has an estimated net worth around $21 billion, JWJ reports. As a family, the Waltons control 49 percent of Wal-Mart and are, says JWJ, the richest family in the United States, with a combined net worth is $93 billion. The Walton Family has as much wealth as the bottom 30 percent of American families combined—more than 35 million families.

The family’s dividends from their Wal-Mart stock alone are more than $2 billion a year. Just using their dividends, they could ensure that a million Wal-Mart employees make at least $12 an hour instead of the current average of $8.81 an hour.

Just last month Wal-Mart, under Rob’s leadership, slashed health care coverage for hundreds of thousands of Wal-Mart employees and their families—right before the holidays. What a scrooge!

Click here to learn more about the runners up, the American Legislative Exchange Council, Publix supermarkets and Eddie Hull University of Massachusetts director of housing and residential life.

This blog originally appeared in AFL-CIO Now blog on December 22, 2011. Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL-CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. He carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. He’s also worked as roadie for a small-time country-rock band, sold blood plasma, and played an occasional game of poker to help pay the rent. You may have seen him at one of several hundred Grateful Dead shows. He was the one with longhair and the tie-dye. Still has the shirts, lost the hair.


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Walmart Women Launch Another Round of Discrimination Suits, But Will It Even Matter in the Long Run?

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Ian Millhiser Last June, the Supreme Court tossed out a class action lawsuit brought by over a million Walmart employees alleging that the company systematically discriminates against women. The Court did not allow the women to try to prove that such discrimination exists, instead holding that the women did not have enough in common with each other to come together in one lawsuit. Yesterday, the women responded to this setback with the first of several cases breaking them down into smaller groups:

The lawyers promised an “armada” of other lawsuits in the next six months making discrimination claims in other regions of the country, as opposed to nationwide. “The case we are starting today is the first of many,” said Brad Seligman, one of the lead plaintiff lawyers. He added that the new lawsuits are “what we like to call Wal-Mart 2.0.” […]

The lawsuit filed Thursday in the United States District Court for the Northern District of California contends that Wal-Mart’s discriminatory practices on pay and job promotion affected more than 90,000 women currently or formerly employed at Wal-Mart and Sam’s Club stores in four regions in California and neighboring states.

This tactic could ultimately prove successful, and it is possible that many hundreds of thousands of women could receive long overdue justice by joining together in somewhat smaller groups. Even if they win, however, the sad truth is that this victory could probably never be repeated thanks to an enormous gift the Supreme Court gave powerful corporations last April.

When the Supreme Court’s Wal-Mart case was handed down, ThinkProgress called it only “the second worst class action case this Supreme Court term.” The worst decision — indeed, one of the very worst Supreme Court decisions in the last decade — was AT&T Mobility v. ConcepcionConcepcion built off a long line of misguided decisions allowing corporations to force their consumers and workers to sign away their right to sue the company in a real court and shunt any disputes into a secretive, privatized arbitration system that overwhelming favors corporate parties. Under Concepcion, corporations can not only take away your right to hold them accountable in a real court, they can also take away your right to join together with other victims of the corporation’s lawbreaking to form a class action lawsuit.

Thanks to this deeply erroneous decision, Walmart can now force each and every one of their workers to sign away their rights or they are fired. And without the ability to bring class actions in the future, many of these workers will be completely powerless against their megacorporate employer.

The class action one of the very few tools enabling vulnerable Americans to stand up to a wealthy and influential corporation. If a major corporation cheats a thousand of its workers out of a thousand dollars each, for example, very few of them will decide it is worth the hassle and expense of a major lawsuit and virtually no lawyer will be willing to take such a low dollar case on a contingency fee basis — meaning that the plaintiffs will have to pay more for legal counsel than they are likely to win in the end. If these thousand workers are able to join together into a class action, however, their million dollar claim suddenly becomes very attractive to top litigators — and the hassle of litigation will be virtually non-existent for most of the plaintiffs. Thanks to Concepcion, however, that is probably no longer an option.

Concepcion was an earthquake, and it shook one of the foundations of our civil justice system to the ground. Walmart may still be held accountable for its past actions, but it is doubtful that any of its workers will ever be able to join a class action against them again.

This blog originally appeared in ThinkProgress on October 28, 2011. Reprinted with permission.

About the Author: Ian Millhiser is a Policy Analyst at the Center for American Progress Action Fund and a blogger on judicial and constitutional issues for ThinkProgress.org. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the Guardian, the American Prospect and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox Business and many radio shows.


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Wal-Mart and Women: Skeptics Question New Initiatives

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kari-lydersenLast week, Wal-Mart announced the latest component of its relatively successful campaign to shift its image from corporate villain to socially responsible role model.

The company promised that it would double its business with women-owned contractors and suppliers in the U.S. and internationally, and educate and train hundreds of thousands of women through its nonprofit Wal-Mart Foundation. That means the company will buy products from more women-owned factories and farms and hire more women to construct its stores.

The move comes after Wal-Mart was up against the largest sex-discrimination class-action lawsuit in history, until the Supreme Court threw it out this summer.

Most labor and social justice advocates are glad to see any corporation change its practices in the face of social and economic pressure, so Wal-Mart’s recent announcement and its other recent efforts, such as contracting with minority suppliers, adopting sustainable environmental practices and increasing diversity and fairness in its stores, can be seen as small victories for campaigns that expose Wal-Mart’s practices.

But many labor and watchdog groups are still skeptical of the mega-corporation’s sincerity and the larger significance of its corporate responsibility initiatives, and they are calling on the company to continue examining and reforming its practices in a big way.

Jennifer Stapleton is spokesperson for Making Change at Wal-Mart, a campaign of the United Food and Commercial Workers international union. She said in a statement last week:

Wal-Mart’s latest PR gambit is trying to cover up decades of unjust treatment of women, but women know better. Wal-Mart causes systematic economic harm to women in the U.S. and around the world, and that is precisely why Wal-Mart is trying to sell us on a new image. Wal-Mart keeps millions of women in the U.S. and around the world in poverty, fails to protect women from unacceptable sexual and other forms of workplace harassment and works many women to the bone in sweatshop conditions around the globe. And, according to the women in the Dukes v. Wal-Mart gender discrimination law suit, Wal-Mart pays women less than men.

In May and June, a group called Organization United for Respect at Wal-Mart (OUR Wal-Mart) surveyed 501 Wal-Mart associates. On a number of questions about pay, fairness and opportunity, women were consistently less satisfied and felt treated less fairly than male workers, by margins of about 10 to 25 percent, depending on the question.

More than half the workers answered that conditions were “poor” or “fair” in terms of having dependable schedules, opportunities for advancement and training, just procedures for discipline and termination and other measures.

These answers imply a mediocre to substandard employment situation–not overwhelming dissatisfaction, but not as positive a result as one might expect from a company that has gone into overdrive to improve its image. Three-quarters of workers also said they thought under-staffing is a serious problem that has resulted in customer dissatisfaction and/or messy stores.

And given the lawsuit and the company’s recent announcement, the group stressed that the disparity between men’s and women’s answers is significant. A release quoted Lancaster, Calif.-Wal-Mart worker Maggie Van Ness saying:

If what’s going on at Wal-Mart happened at a small company, it would be bad enough. But because Wal-Mart’s the nation’s largest employer and sets standards for our communities and other companies, this is a full-scale epidemic. The data show widespread problems that are especially bad for women, who need these jobs.

Wal-Mart is the largest private employer of women in the U.S., with 808,000 women making up 65 percent of its domestic workforce as of 2001, according to a paper by Making Change at Wal-Mart. Between 1996 and 2001, women working at Wal-Mart earned on average $5,200 less per year than men, and were also much less likely to have salaried, upper-level management positions, according to a 2003 report. It also noted women in salaried positions earned $14,000 less per year than their male counterparts.

Last year, the Equal Employment Opportunity Commission negotiated an $11.7 million settlement with the company over complaints that at a Kentucky distribution facility, women were systematically discriminated against for certain positions that usually went to young males.

In light of Wal-Mart’s recent promise to increase business with women, Wal-Mart critics also point to the story of Margaret Garner, an African-American construction-business owner whom Wal-Mart had celebrated for her lead role in building its controversial first Chicago store, on the city’s impoverished West Side. Four years after it opened, Wal-Mart has billed that store as a success and planned dozens more stores for Chicago. But Garner’s firm declared bankruptcy last year, driven by $11.9 million in debt from cost over-runs on the Wal-Mart, as reported by Crain’s Chicago Business. The Crain’s investigation explains that Garner’s firm, which received incentives under city programs for minority contractors, sent most of the actual work to firms owned by white males. Garner’s firm sunk into debt when it couldn’t pay those companies as promised.

Also, a University of Illinois at Chicago and Loyola University study alleges that the West Side Wal-Mart drove other local companies out of business, a long-standing complaint which Wal-Mart says is not borne out by facts.

But according to Making Change at Wal-Mart,

For decades, Wal-Mart has shown that when it “invests” in a community, that community can expect lost jobs, depressed wages, bankrupt local business, and lowering of labor standards to follow quickly. Women in the U.S. and around the world would be far better served if Wal-Mart would improve its labor practices, raise its wages, and use its power to stand up for human rights instead of undermining them through its day-to-day business practices.

This post originally appeared in Working in These Times on September 19, 2011. Reprinted with permission.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.


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Supreme Ct. News Not All Bad for Employees This Term

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Image: David WeisenfeldIt’s no secret that the nation’s employees did not fare well in the two most highly-publicized Supreme Court rulings affecting them this term, Wal-Mart v. Dukes and AT&T v. Concepcion.  In both cases, the ability of plaintiffs to get relief as a class in the courts was curtailed.

The Wal-Mart holding will make it especially difficult for employees in differing job classifications to team together to win a class action discrimination lawsuit.  Meanwhile, the AT&T case arose not from the employment realm at all, but rather from a seemingly mundane consumer dispute.

A California couple, Victor and Liza Concepcion, claimed they had unknowingly signed away their right to initiate a class action against AT&T as part of a form agreement.  They were upset after being charged $300 for a cell phone that had been touted as free.  The Concepions argued that the arbitration clause they signed should be struck down as unconscionable because its classwide ban would leave them and other similarly-situated consumers without representation.

But just as in Wal-Mart v. Dukes, the AT&T case broke down along strict ideological lines with the five conservative justices voting to uphold the classwide ban in another 5-4 opinion.  Writing for the Court, Justice Antonin Scalia asserted that courts must place arbitration agreements on equal footing with other contracts and enforce them according to their terms.  “Requiring the availability of classwide arbitration,” he said, “creates a scheme which is inconsistent with the Federal Arbitration Act.”

While the underlying facts arose from some unhappy consumers, it does not take much of a leap to see how the holding’s language could affect employees confronted with similar arbitration agreements by their employers.  No less an authority than veteran San Francisco plaintiff’s employment attorney Cliff Palefsky has said of AT&T v. Concepcion, “There’s a potential for mischief.” He adds that the ruling is sure to extend to arbitration clauses in the employment realm.

When the Wal-Mart and AT&T opinions are coupled together, the picture at the Supreme Court from this past term may not be a pretty one for employees.  But for those willing to dig a little deeper, the term actually reveals gains for workers when it comes to workplace anti-retaliation protections.

In a trio of cases, the justices ruled decisively for employees who alleged they were the victims of retaliation under Title VII of the Civil Rights Act, the Fair Labor Standards Act and the Uniformed Services Employment and Reemployment Rights Act (USERRA).  In two of the disputes, the decisions were unanimous while the third resulted in a 6-2 victory for the plaintiff employee.

The civil rights case, Thompson v. North American Stainless, involved a Kentucky man who said he was fired from his job because his fiancé had filed an EEO complaint against their employer.  While the Sixth Circuit Court of Appeals had held there is no cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity themselves, the Supreme Court soundly rejected that ruling.

In an opinion that was authored by Justice Scalia, the Court called it “obvious” that retaliating against an employee by firing her fiancé could dissuade that person from filing an EEO complaint or engaging in other legally-protected acts.

In another unanimous pro-employee outcome, Staub v. Proctor Hospital, the High Court held that employers may be liable for discrimination even when the decisionmaker herself harbored no discriminatory animus toward the plaintiff.  That marked yet another Justice Scalia opinion.

The case involved the claims of a military reservist who purportedly had been terminated from his job at an Illinois hospital for insubordination.  The plaintiff Vincent Staub said, however, that the real reason was because his immediate supervisor and another supervisor had an anti-military bias.  He claimed both were upset because of time he had missed while serving on active duty in Iraq.

The actual decisionmaker, though, was an HR vice president who had acted with no apparent bias.  Nonetheless, the Supreme Court found that lack of hostility to be irrelevant.  That’s because the supervisor who allegedly frowned on Staub’s military obligations was the same one who wrote up the report that the HR vice president relied upon in making her decision.

Meanwhile, another employee prevailed at the nation’s highest court in the Fair Labor Standards Act retaliation case of Kasten v. Saint-Gobain.  The justices ruled that the FLSA protected a Wisconsin factory worker’s complaints about the placement of time clocks even though he never made them in writing.

The Court found that oral complaints to company officials were enough.  In reaching their ruling, the justices reasoned that it was unlikely Congress would have wanted to limit the labor law’s effectiveness by excluding those who would find it hard to reduce their complaints to writing, namely illiterate, less educated or overworked employees.  It’s an opinion that is sure to aid the rights of blue-collar workers.

So what can we draw from these results?  The Supreme Court has a well-earned a reputation as a pro-business court.  And these three opinions hardly represent a seismic shift.  But while none of them are on the scale of the Wal-Mart or AT&T rulings, they ARE significant.

In all three of those retaliation cases, the employees had lost at the federal appellate level.  The fact that the Supreme Court saw fit to hear all three of those disputes and to issue one-sided reversals each time is a sign that the justices are willing to take a strong stand against retaliation in the workplace, at least when individual employees are affected rather than a large class.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011.  During that time, he covered every employment law case heard by the Court, and also wrote and co-anchored the company’s employment law newscasts.  In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.


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Too Big to Sue? High Court Thwarts Wal-Mart Gender Discrimination Case

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Michelle ChenAs legions of Walmart workers shuffled into work on Monday, the Supreme Court smacked down a major class-action lawsuit that might potentially have shifted the legal landscape on women’s rights in the workplace.

The gender-discrimination lawsuit against the world’s most notorious retail giant had been pending for years. Now the Court’s majority opinion has declared that, in light of “Walmart’s size and geographical scope,” the plaintiffs could not provide “significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here.”

And with that, Justice Antonin Scalia rendered perhaps hundreds of thousands of working women absent from the discussion on gender discrimination in today’s sink-or-swim economy. The split in the most significant part of the judgment, the class-action aspect, was five to four, putting all the female justices in the minority. The division ironically suggested a lack of self-reflection on how structural gender discrimination works in powerful institutions.

The core of the decision is not about whether Walmart did indeed discriminate. There’s ample evidence of that, though, including records of pay scales skewed against women, unequal hiring patterns in managerial positions, and expert testimony on the social implications of these trends. The Court’s opinion doesn’t examine that, but rather whether America’s discount paradise can be held legally accountable for systematic mistreatment of female workers.

The ruling was a high-five moment for the right, as it allows Wal-Mart executives to skirt a gargantuan liability. Going forward, the decision will in many circumstances leave the women on their own in seeking legal redress, since their claims can’t be in a mega-suit. Although Wal-Mart’s main defense is that it’s not responsible for lower managers who violate non-discrimination rules, the plaintiffs alleged a crime of omission: that the corporation failed in its responsibility to prevent bias against women as a matter of policy. A statment from the case sums up their position:

The discrimination to which they have been subjected is common to all Walmart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decision-making of each one of Walmart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.

By enabling discrimination, the suit contended, Walmart should be held liable all the way through the command chain, from the exec in the boardroom down to the greeter at the store entryway. That’s where lead plaintiff Betty Dukes got stuck. She was demoted to greeter after working higher positions at a Pittsburgh, California store, she alleged, primarily because management retaliated against her for formally complaining about her treatment. Male colleagues who behaved similarly, Dukes says, never faced the same discipline.

There’s also Edith Arana. The former employee, who like Dukes is a black woman, claimed that after five years of working at Walmart in Duarte, California, she sought management training and was told, “there’s no place in management for people like you.”

After leaving the job, Arana told PBS NewsHour in 2004:

I have never seen a man that has, like, struggled, done everything he was supposed to do, worked overtime, sacrificed his family time, come in on days that he wasn’t supposed to—I’ve never seen a man that would go through that and not get what he was promised. But the women, they do it over and over and over again.

The setback in this suit doesn’t mean women can’t go after Walmart for discriminatory practices. We may in the near future see more targeted, smaller-scale litigation (including suits related to racial discrimination)—or perhaps even more grassroots political pressure campaigns on this issue.

But the decision will no doubt discourage legal action by giving many women no choice but to go through the arduous process of filing suit on an individual, not group basis. Meanwhile, Walmart will continue to expand its influence on the workforce gender divide by employing more female employees, and subjecting more women to the indignities of discrimination, gradually eclipsing workers’ civil rights in the shadow of the Big Box industry.

Following the ruling, Debra L. Ness, president of the National Partnership for Women and Families warned in a statement that the case would open the door to more discrimination with impunity in the corporate world:

Today’s ruling sets a dangerous precedent that will make it easier for employers – especially large ones – to discriminate against their employees while, at the same time, making it harder for workers to come together to challenge it. This creation of a potential ‘large company’ exception to our civil rights laws is a perversion of justice.

In other words, the bigger the company, the larger the workforce, the greater the potential for discrimination, the deeper the economic injustice throughout our communities… and the smaller a worker’s chances of getting her day in court.

This article originally appeared on the Working In These Times blog on June 21, 2011. Reprinted with permission.

About the Author: Michelle Chen ’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen @ inthesetimes.com.


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Why Wal-Mart Matters, But Perhaps Less Than You Think

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David Weisenfeld

The Supreme Court’s landmark decision on Monday in Wal-Mart v. Dukes understandably garnered front-page headlines in the nation’s newspapers. After all, the case was the largest employment discrimination case in history, dwarfing all other competitors by far with its potential to have included more than one-million current and former female Wal-Mart employees.

But in reality, this mammoth pattern and practice class action was decided December 7, 2010. That’s the day the Supreme Court agreed to hear the dispute. The women who brought this 10-year-old case had won every step of the way. In fact, Ninth Circuit Judge Susan Graber said in her 2010 concurrence in one of the plaintiffs’ victories, “There is nothing unique about this case except for its size.”

As it turned out, however, size mattered. There was no direct circuit split on this issue. Indeed, there was no other case that was truly directly on point. So when the Supreme Court decided to wade into the fray, there was no chance it was doing so to pat the West Coast appellate court on the back for a job well done. Instead, the Court was going to place limits on class actions.

Lead plaintiffs’ counsel Brad Seligman fought hard and fought well throughout this ten-year-old litigation. But a case that could have led to billions of dollars in litigation was going to face a difficult hurdle at the nation’s highest court, and it did. The cries that plaintiffs now cannot proceed in employment class actions, however, could be premature.

The Wal-Mart case included hourly greeters, company vice presidents earning six figures, and female employees in all sorts of jobs between those extremes. The claim by the plaintiffs’ attorneys that Wal-Mart provided “unchecked discretion” to its managers was one that swing voter Anthony Kennedy undoubtedly found difficult to square with the allegation that the company had a top-down culture of discrimination emanating from Wal-Mart’s Arkansas headquarters.

In fact, during the oral arguments Justice Kennedy said as much when he wondered aloud what the unlawful policy was. “It seems to me there’s an inconsistency there,” he said. “If it’s standardless and recordless, then why is there commonality?” If there was any doubt as to the outcome, that comment and question put it to rest.

This was less a case of Wal-Mart being “too big to sue” than the majority of the justices wondering how 1.5-million women at 3,400 stores in widely divergent positions could have something in common besides their gender.

The opinion was notably silent, however, about whether or not the retailer had engaged in sex discrimination. And, it leaves open the possibility of smaller groups of employees banding together, ideally from similar job classifications.

Wal-Mart’s attorney Theodore Boutrous said immediately following the decision, “Under [this] ruling, the way we read it, no class can be certified in this case.” But that seems to be more than a bit of hyperbole.

Will it be tougher for plaintiffs to proceed? Unquestionably. And when they do so, the litigation will be much smaller in scope. But the women and those who represent them have vowed to continue fighting Wal-Mart over what they see as unequal treatment. Smaller class actions against other big companies have succeeded before and likely will again. Those cases just need to be more focused than ever on complying with the Supreme Court’s call for commonality among class members.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011. During that time, he covered every employment law case heard by the Court including Wal-Mart v. Dukes, and also wrote and co-anchored the company’s employment law newscasts. In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.


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