Social Media Puts Wal-Mart on the Defensive

Social media appears to be playing a significant role in an epic battle between Wal-Mart Stores, the world’s largest retailer,  and an American union that presumably would like to represent Wal-Mart workers, The United Food and Commercial Workers .

The union has channeled worker dissatisfaction with  Wal-Mart’s  wages, benefits and working conditions into an innovative social media campaign  featuring web sites funded by the union called OURWalmart (Organization United for Respect at Walmart) and Making Change at Walmart.    These sites include a fundraising arm for “striking” Wal-Mart associates, news about alleged poor labor practices by Wal-Mart, and slick videos of associates complaining about their treatment by Wal-Mart. On Tuesday, OURWalmart referred associates to information allegedly leaked by OccupyWallStreet.org on secret Wal-Mart power points   that tell managers how to fend off unionization efforts.

OURWalmart has garnered national publicity for labor protests at Wal-Mart stores across the nation and appears to be making some gains, possibly because of Wal-Mart’s seeming overreaction to the protests of associates and the reality of Wal-Mart’s stingy  pay and benefits.

The National Labor Relations Board (NLRB) Office of the General Counsel recently issued a consolidated complaint  against Wal-Mart alleging that the company violated the rights of its employees as a result of activities surrounding employee protests in 14 states. The complaint involves more than 60 employees, 19 of whom were discharged allegedly as a result of their participation in activities protected by the National Labor Relations Act (NLRA).  The NLRA guarantees the right of private sector employees to act together to try to improve their wages and working conditions with or without a union.

Wal-Mart contends that most of the associates were fired “for violating Walmart’s attendance policies that apply to all associates. Some of these individuals violated the attendance policy dozens of times in the last six months. In other cases, they were absent from work for more than eight days without letting anyone know when they would be returning to work. The facts present a very different story from what OUR Walmart/UFCW asserts.”

Wal-Mart has responded to the UCFW campaign with its own web site called, OURWalmartFactcheck.com , which states its purpose is “to examine claims and provide facts about the Organization United for Respect at Walmart (OUR Walmart) – a group funded by the United Food and Commercial Workers International Union. This site is sponsored and operated by Wal-Mart Stores, Inc.”

Fact checker

Ironically, Walmart’s OURFactcheck.com  on Tuesday appeared to need a fact checker.

The web site incorrectly quotes a story in The Daily News Telegram of Worchester, Massachusetts, as reporting  that the average the average Walmart associate earns $12.83 per hour, and less than 1/2 of 1% of associates earnclaim_source minimum wage.  Walmart provides a link to the The Telegram story, which quotes Kory Lundberg, a Walmart spokesman, as stating:  “In Massachusetts … the average wage of a full-time hourly associate at Walmart is $13.86. He also noted that the majority of Walmart employees are full time. Mr. Lundberg said less than 1/2 of one percent of all Walmart associates earn minimum. Walmart’s pay is comparable to other retailers; it has to be to stay competitive, he said.”

There’s obviously a difference between the average pay of a Walmart associate and the average wage in Massachusetts of a full-time hourly Walmart associate.

NLRB Complaint

According to the NLRB,  the consolidated complaint against Wal-Mart actually was authorized in November of 2013, but withheld until last week while the Office of the General Counsel engaged in failed settlement discussions with Wal-Mart.  Additional charges are under investigation.

The NLRB states that Wal-Mart unlawfully threatened employees with reprisal if they engaged in strikes and protests during two national television news broadcasts and in statements to employees at Walmart stores in California and Texas. At stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington, the NLRB says that Wal-Mart unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.  At stores in California, Florida, Missouri and Texas, the NLRB says Wal-Mart unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.

Note: OurWalmart includes a “legal disclaimer” stating that the UCFW is not trying to organize Wal-Mart workers but merely to “help Wal-Mart employees as individuals or groups” in their dealings with Wal-Mart.

Walmart Dodges Bullet on Sex Discrimination

Scale of JusticeWal-Mart may have dodged the bullet for alleged systemic sex discrimination dating back at least a decade.

Last week a federal judge in San Francisco denied class certification in a statewide class action lawsuit filed by five female Wal-Mart employees in California on behalf of 150,000 past and present female workers in that state who  allegedly were denied equal treatment in pay and promotions.

This is the second defeat for plaintiffs seeking to file class action lawsuits against Wal-Mart on a state or regional basis. Wal-Mart won dismissal of a lawsuit in October that sought to represent female Wal-Mart workers in Texas.

 The U.S. Supreme Court last year rejected a 12-year-old class action lawsuit filed by six female employees of Wal-Mart on behalf of  1.6 million past and present female workers around the country. 

What’s left for the plaintiffs?

Class action lawsuits often are the only realistic way of addressing systematic discrimination by corporations because of  the high cost of litigation, the defendant’s “deep pockets,”  and the relatively paltry amount of damages typically available in individual cases.

Underwhelmed

Senior U.S. District Judge Charles R. Breyer ruled the California lawsuit failed to meet the  U.S. Supreme Court’s criteria for a collective legal action, including evidence of a company policy or decisions by higher-ups that affect all workers in the class. He the statistics “still do not reflect significant proof of a general policy of discrimination.”

Judge Breyer concluded the following evidence from the plaintiff’s is “underwhelming”:

  • About three-quarters of the stores paid women, on average, the same hourly rates as men. (Note: of course, this means that a quarter of Wal-Mart stores pay women, on average, a lower hourly rate than men. PGB)
  • Eighty-six female Wal-Mart employees in California described personal experiences of discrimination  – that represents only one woman for every 1,745 members of the proposed statewide class. (It’s unclear what number would be sufficient  for class action status- PGB)
  • The plaintiff’s produced evidence that Wal-Mart’s then-chief executive, Thomas Coughlin, in a 2004 meeting attended by district managers who approve pay and promotional decisions, said the key to success in choosing leaders was “a single focus to get the job done,” and that “men are better at focus.”
  • The plaintiffs said they had evidence of disparities throughout California and biased statements by top managers.

The U.S. Supreme Court ruled unanimously in June 2011 that the original lawsuit against Wal-Mart in 2001 failed to show any company-wide policy or attitude of discrimination  and said there were too many women in too many jobs at Wal-Mart to wrap into one lawsuit. The high court overturned lower court decisions that allowed nationwide class-action status.

Judge Breyer said the California lawsuit “is essentially a scaled-down version of the (nationwide) case with new labels on old arguments.” He said the plaintiffs challenged “the discretionary decisions of hundreds of decision-makers,” which, according to the U.S. Supreme Court, cannot be the basis of a class-action suit.  

Breyer said the remarks attributed to former Wal-Mart CEO Coughlin may have come from an outside consultant and were made after the period covered by the lawsuit.

Breyer, 72, was appointed to the federal bench in 1997 by then-President Bill Clinton.  His brother is U.S. Supreme Court  Justice Stephen Breyer.

Dodged a Bullet?

At one point, Wal-Mart, the nation’s leading retailer, was concerned about potentially serious liability for alleged sex discrimination.

In  2010, the New York Times published an article on a 1995 memorandum issued by Wal-Mart’s then counsel, Akin Gump Strauss Hauer & Feld,  that reported widespread gender disparities in pay and promotion at Wal-Mart and Sam’s Club stores.

The NYT reported the memo said that “women employed by Wal-Mart earned less than men in numerous job categories, with men in salaried jobs earning 19 percent more than women..”

By one measure, the memo states “. . . men were five and a half times as likely as women to be promoted into salaried, management positions.” Furthermore, in 1993, men employed by Wal-Mart as department managers were paid an hourly rate 5.8 percent higher than women in those positions. 

The Memo estimated that Wal-Mart’s potential legal exposure in a class-action sex discrimination suit was $185 million to $740 million for 1993 alone.

The  overall disparities in job assignments, the memo states, were “statistically significant and sufficient to warrant a finding of discrimination unless the company can demonstrate at trial that the statistical disparities are caused by legitimate, nondiscriminatory factors.”

At this point it appears that Wal-Mart has dodged that bullet.

Wal-Mart was “pleased” by California Judge Breyer’s ruling and said it has a had a  “strong policy” against discrimination in place for many years.

Taxpayers’ Xmas Present to Walmart?

WalmartWho pays when an employer does not offer health care or pension benefits to its employees, opting instead to pocket its profits?

Taxpayers.

 The Huffington Post has obtained a copy of Walmart’s health care policy, which shows that the, the nation’s largest private employer will begin to deny insurance to new employees who work fewer than 30 hours a week. The company can also choose to eliminate health coverage for current workers whose hours dip below the 30 hour threshold.

“This is another example of a tremendous government subsidy to Walmart via its workers,” says Nelson Lichtenstein, the director of the Center for the Study of Work, Labor and Democracy at UC Santa Barbara.

 In anticipation of the Affordable Care Act, experts say that Walmart  is effectively shifting the costs of paying for its employees onto the federal government.  The Act extends Medicaid to low- income citizens and many if not most Walmart employees working fewer than 30 hours per week would drop below the poverty limits for inclusion in the expanded program. Merry Xmas Walmart!

Meanwhile, Walmart Stores reported a 9% increase in third-quarter net income last month as the world’s largest retailer continues to bring back shoppers by emphasizing it has the lowest prices.

 The Associated Press reports that revenue for Walmart’s U.S. business, which accounts for about 60% of the company’s total business, rose 3.6% to $66.1 billion, while revenue at Wal-Mart’s Sam’s Club rose 4.7% to $13.9 billion. Revenue at its international division, which accounts for about a quarter of Walmart’s total revenue, rose 4.7%.

 Wal-Mart accounts for nearly 10% of nonautomotive retail spending in the U.S.

Walmart has reportedly instructed its public relations staff to stop communicating or responding to inquiries from The Huffington Post.

 

Canadian Jury Puts Employers on Notice

Kudos to Beverly Peterson at Our Bully Pulpit for noting this story from The Windsor Star newspaper, which highlights the contrast between the United States and Canadian legal systems with respect to workplace bullying.

Targets in the United States have little legal recourse in the legal system. There is no law against workplace bullying. If they  somehow make it to court – usually alleging some form of discrimination –  it is probable that a federal judge will dismiss their case before it ever reaches a jury.  It’s a different story in Windsor, Ontario, Canada, which has a law and where a target of bullying recently won a $1.4 million award after she was bullied out of her job at Walmart.

The Canadian jury of three men and three women, who decided that Boucher was constructively dismissed — in other words, forced out through abusive treatment — awarded her: from Walmart, $200,000 for intentional infliction of mental suffering, $1 million for punitive damages, and $10,000 for assault; and from her former supervisor, Jason Pinnock, $100,000 for intentional infliction of mental suffering, and $150,000 for punitive damages. .

Here’s an excerpt from an article by a University of Windsor professor who analyzes the significance of the verdict:

 The $1.46-million award a former Walmart assistant manager won this week in Windsor for mistreatment by a boss could make workplaces more civil across Canada, says an expert on workplace bullying.

The Windsor ruling — the highest such award in Canadian history — for the first time has turned mass media attention to bullying at work, instead of simply, say, bullying at school.

“This is the big case and it’s going to change the way Canadians see workplace bullying, absolutely,” said Jacqueline Power, a University of Windsor assistant professor of business management who specializes in workplace bullying. “It’s similar to what sexual harassment was 20 years ago. People just had to put up with sexual harassment in the workplace. Then they started having large legal judgments and human resources departments began to take it seriously.”

Power said Ontario’s Bill 168, introduced in 2009 to protect workers from violence and harassment on the job, set the stage. But she said enforcement didn’t follow as promised, so it fell to court cases to lay out the law — starting with Meredith Boucher.

Last month Boucher launched a lawsuit against Walmart, where she had worked for 10 years, after she felt forced to leave the company in November 2009. A jury agreed the 42-year-old Chatham woman suffered daily abuse from Jason Pinnock, 32, then the manager of the east Windsor Walmart where she worked, who would berate her with profane and insulting language over six months, often in front of others.

She filed a suit alleging intentional infliction of mental suffering, sexual harassment and discrimination, and assault by an assistant manager who punched her in the arm two days in a row and was subsequently fired.

The jury of three men and three women gave her nothing for sexual harassment and discrimination, but handed her a whopping award for her other claims: $1.21 million against Walmart and $250,000 against Pinnock.

Power said the judgment sets another precedent beyond being the richest such award in Canada. She said it also marks the first time someone has successfully won for general bullying by a boss, without the victim having to fall into a special category of female, visible minority, gay or anything else.

“This is the first time that we have recognized that you can be a white male and still be treated badly at work,” she said, noting the irony that it took a woman to fight for such protection for all. “In the United States, they have decided explicitly that they will not enforce civility. But in Canada, we now look after white men, as well.

“So it’s an extremely brave thing for this person to bring it to court. And because she was so brave, she has changed the legal environment for all employees.”…

Boucher’s lawsuit is actually only the first of four against Walmart Canada,  all by female assistant managers seeking at least $500,000 in damages, all from the same store, all alleging the same thing in 2009 and 2010: abusive treatment by a manager….

“We are disappointed with the decision and surprised by the highly exceptional damages that have been awarded,” said Andrew Pelletier, vice-president of corporate affairs and sustainability for Walmart Canada. “We’re reviewing the decision in detail now and we will consider all options, including the possibility of an appeal.”

Pelletier said he is surprised not just by the size of the judgment but by the allegations.

A number of Walmart employees have launched suits against the company in the United States, however, where some workers have recently threatened to strike, despite the fact they are not unionized….

The woman at the centre of the case, meanwhile, says only one person treated her abusively but that it affected her deeply. Court heard that Boucher spoke to senior Walmart managers about the abuse several times. Not only was nothing done about it, she was told she would be held accountable for her accusations.

She became physically ill, lost weight, sought counselling, and was treated for stress. And then she took it to court, risking having to pay Walmart’s substantial court costs if she lost.