The Risks Of The Wal-Mart Class Action

The U.S. Supreme Court heard oral argument yesterday on the Wal-mart Class Action.  This case has me worried.

The lawsuit is a giant class action about gender discrimination -- potentially the largest class action in history.  A group of women sued Wal-mart in 2001, claiming that the company systematically discriminates against women in both pay and promotional opportunities.  After years of litigating, and after reviewing statistical evidence showing that hourly and salaried female employees receive lower pay and less advancement opportunities than do males, the trial court certified the case to proceed as a class action.  This decision was upheld by a 6-5 decision of the 9th Circuit Court of Appeals in California.  Wal-mart then requested review by the Supreme Court.

The issue before the Supreme Court is not whether Wal-mart discriminates.  Rather, it is whether the case can proceed as a class action.  If not, each of the hundreds of thousand women who are potential class members would be required to file her own individual lawsuit.  What is at issue is the "commonality" requirement for class actions -- whether or not the claims of hundreds of thousand women, who worked at 3,400 stores under tens of thousand different managers, are sufficiently related to allow the case to be treated as a class action.  Wal-mart's argument is, essentially, that a class this size simply cannot, as a matter of law, meet the commonality requirement.  This argument was rejected by the trial court and the 9th Circuit.

I am worried about this case because it presents the corporatist majority on the Supreme Court, led by Chief Justice Roberts, a golden opportunity to eviscerate the class action mechanism.  By way of disclosure, I am a class action lawyer.  As an employee rights advocate, I have found one of the most effective ways to hold a large company accountable for systemic wrong-doing is the class action.  Which is a major reason why large corporations hate class actions and would love to see it become much more difficult to proceed with a class action.  And as the Citizens United decision makes clear, the current Supreme Court is much more concerned with the rights of corporations that with the rights of individuals.  And while the Court occasionally surprises me, I fully expect this decision to be in line with Citizens United.  And that will make it much more difficult for employees to band together to fight against illegal and unethical conduct by large employers.

Why Pay The Peons When You Can Just Make Them Work For Free?

I saw this post on Crooks and Liars, and my head exploded.  It's an article about how the next big thing for businesses is to use unpaid interns instead of paid workers, and corporate overlord types are salivating over the idea.  I guess it's the logical next step.  After driving down wages and benefits as much as possible, what could be better for the bottom line than not paying workers at all?

What really gets me is how excited these corporate hacks sound over the prospect of screwing their workers.  Sure, it's great for the company not to have to pay anything for its labor force.  But what happens when, as the Fortune article suggests, this becomes "the new normal?"  Henry Ford was smart enough to know that workers need to be paid a decent wage so that they can afford to buy your product.  Who is going to be able to buy Remote Stylist's "web-based interior design services" if this type of modern indentured servitude becomes the norm?  Actually, this is worse than indentured servitude, because at least then the employer was obligated to provide food, lodging and other necessities.

And what about the people who agree to this?  It's one thing for a student to serve as an unpaid intern in order to get some job experience -- the type of internship that has been common for years.  It's another thing entirely for a company's business model to be based on the use of unpaid workers.  I wonder about the woman quoted in the Fortune article who is happy to have the "job," even though she's down to $1.50 in her checking account.  What is she going to do if her boyfriend stops paying her bills?  How is she going to buy food?

And the line that really gets me in this article is "Unfortunately for many employers hoping to use unpaid labor to advance their business goals, there are strict federal and state rules that workers must be paid the minimum wage and paid for overtime, and must abide by other provisions in the Fair Labor Standards Act, which applies to about 135 million people working for 7.3 million employers."  Are you kidding me? It's "unfortunate" that the law requires you to pay the peons a measly $7.25 an hour?  What is wrong with these people?

We live in a world where GE can earn $14.2 Billion and pay zero in taxes.  But even in this corporatist climate, a company that makes a conscious decision to rely on unpaid labor is beyond the pale.  And the executives who think this is the greatest thing since sliced bread are simply reprehensible human beings.

New EEOC Regulations Make It Easier To Prove Disability Discrimination

In 2008, Congress passed the ADA Amendments Act.  The law overturned several Supreme Court decisions that had narrowly interpreted the definition of "disability" under the Americans with Disabilities Act.  Today, the EEOC has issued new regulations implementing the ADAAA.

Among the changes:

• Whether a physical impairment is considered to be a disability should be construed as broadly as possible.
• A physical impairment need not prevent or severely or significantly restrict performance of a major life activity to be considered a disability.
• “Mitigating measures,” such as medication and assistive devices like hearing aids, must not be considered when determining whether someone has a disability. 
• Episodic impairments, such as epilepsy, or impairments that are in remission, such as cancer, are disabilities if they would be substantially limiting when active.
• The regulations also make it easier for individuals to be “regarded as” having a disability, focusing on how the person was treated rather than on what an employer believes about the nature of the person’s impairment.
  
  The ADAA and these new regulations became necessary because federal courts have been particularly hostile to the ADA.  While the language of the ADA is very broad, courts have interpreted it in such a way that it became almost impossible to prove both that you were disabled and that you were still capable of performing the essential functions of a job.  Indeed, it had gotten so bad that my practice had been to advise victims of disability discrimination to ignore the ADA and bring their claims just under Connecticut law, which is much more employee-friendly.  The ADAAA and the new regulations have breathed new life into the ADA.  Let's hope that conservative, business-oriented judges get the message this time and don't start a new round of limitations on the law.
  
  You can get more information on the ADAAA and the new regulations from the EEOC by clicking here.

Unemployment Benefits Slashed In Michigan

What is it with Governor Rick Snyder and the Corporatist Republicans who are running Michigan?  On the heels of outlawing worker safety rules, the Michigan legislature has just voted to slash unemployment benefits.

Instead of 26 weeks of benefits, starting in January 2012 new claimants will only be able to collect unemployment for 20 weeks.  Thus, Michigan is now the only state that offers fewer than 26 weeks of state unemployment benefits.

This makes no sense.  In January, 2011, the seasonally adjusted unemployment rate in Michigan was 10.7%, while the national average was 8.9%.  In 2010, the average length of unemployment in Michigan 40 weeks.  As of November 30, 2010, about 162,000 people in Michigan had exhausted the extended 99 weeks of federal benefits.  And the Republican-controlled legislature thinks it's a good idea to cut benefits?!!?

In the meantime, Governor Snyder wants to cut corporate taxes by 86%.  Talk about a corporate tool!

Workplace Safety Rules Are Now Illegal In Michigan

Yes, you read that correctly.  Michigan's Corporatist governor, Rick Snyder, signed a bill that outlaws workplace ergonomics regulations.  Ergonomic rules are designed to prevent injuries caused by lifting, bending, repetitive motions, etc.

How stupid is this?  In the interests of "competitiveness," the State of Michigan has decided not only that it is ok for workers to be injured on the job, but that attempts to lessen the likelihood of injury are illegal!  And will this really make Michigan more "competitive?"  Have they factored in the hidden costs, in things like lost time and productivity and increased workers' comp payments?  This is just another example of Republicans placing corporate interests above those of human beings.

Can I Be Fired For Making An Oral Complaint?

If the complaint is of a violation of the Fair Labor Standards Act ("FLSA"), the answer is "no."  That's what the U.S. Supreme Court held today in the case of Kasten v. Saint-Gobain Performance Plastics Corp.

Kevin Kasten complained to his bosses about the location of the time clock at work.  Specifically, he complained that the location prevented workers from getting paid for the time spent putting on and taking off their protective gear.  Under the FLSA, employees are required to be paid for such "donning and doffing" time.  Mr. Kasten complained to his supervisor, to HR, to his lead man and to his Operations Manager that he thought the location was illegal and the company would lose if it ever went to court.  When he was fired, Mr. Kasten sued under the FLSA's anti-retaliation provision, which makes it illegal "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . ." under the FLSA.

Mr. Kasten's suit was tossed out of court, on the grounds that the FLSA's anti-retaliation only applies to written complaints.  The Seventh Circuit Court of Appeals in Chicago agreed, so he took it all the way up to the U.S. Supreme Court.  And won.  The court held, in a 6-2 decision (Justice Kagan did not participate), that the "filed any complaint" language includes oral as well as written complaints.

Justices Scalia and Thomas dissented (gee, there's a surprise).  In their view, Mr. Kasten should lose, not because his complaints were oral rather than written, but because they were made to the employer rather than to the government.  In their view, the only way a complaint can be "filed" is with the government.  The majority declined to reach this issue, so it remains an open question.  In my view, this narrow, restrictive view undermines the goals of the FLSA and unfairly punished employees who choose to take the lesser, and perhaps more reasonable, step of complaining internally before escalating to the point of calling the government.

Regardless of this open question, this case is a nice victory for workers.  We need more like it.

How Do You Survive On Minimum Wage?

While perusing The Daily Kos this morning, I ran across this post, which asks the question, "How the hell does someone live on $7.25 an hour?"  Which got me to thinking, "Yeah, how does somebody live on minimum wage?"

If you work 40 hours a week at the federal minimum wage of $7.25 an hour, that's $290 a week, $1,257 a month, or $15,080 a year, before taxes.  Take out 10 percent for taxes, that leaves you with $1,132 a month.  Now let's say you're lucky enough to find an apartment for $500 a month.  You're down to $632 left.  But wait -- you need a car to get to work.  And gas is almost $4 a gallon.  If you drive 1000 miles a month, and get 25 miles to the gallon, you're spending about $150 a month on gas.  That leaves you with $482.  Do you own the car outright?  If not, you've got a car loan.  We'll be conservative and call that $150 a month.  You're at $332.  Plus, you still have to pay for phone and utilities -- let's call that another $100 a month.  That leaves you with $232 a month for food, clothing, health insurance, car insurance and everything else.  It's just not possible!

I'm lucky.  As a lawyer, I have the ability to earn a decent living.  But a lot of people, due to lack of opportunity, lack of marketable skills or lack of a decent education, are not as lucky as I am.  But the real tragedy is that, in the wealthiest, most blessed nation on earth, we can't even see fit to pay workers a wage they can live on.  Note that I'm not talking about welfare -- I'm talking about people who are working, full time, but get paid so little they can't even make it to the end of the month.  And as a society, we seem to be OK with this.  That's just wrong.  So to all my conservative friends out there, the minimum wage is not too high, it's too low!  We should at least be paying people a living wage.