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Walmart, Employees, Wait on the Supreme Court

Thomas A. Kochan is the George M. Bunker Professor at the MIT Sloan School
of Management and co-Director of the MIT Institute for Work and Employment
Research. He served as an expert witness in a number of Walmart wage and hour lawsuits.

Monday's agreement by the U.S. Supreme Court to review whether to go forward with a massive class-action claim by female employees who claim sexual discrimination by Walmart will be about more than procedural issues: It will determine whether these women and millions of other employees will be able to stand up and enforce their workplace rights.

Because such workers can no longer gain a voice through voluntary association into unions or professional associations, it takes the power and threat of collective legal action to get companies such as Walmart to face their employees' legitimate needs.

Two lower federal courts have ruled that the class action lawsuit,
representing up to 1.5 million female employees of Walmart, can proceed. The Supreme Court agreed to an appeal by Walmart, backed by other large employers and the U.S. Chamber of Commerce, to review those decisions. But when it hears arguments, probably this spring, the Court should look beyond narrow procedural concerns and consider Walmart's clear pattern of behavior when faced with such anti-worker claims. The Court should not fall for bogus arguments that the company is not responsible for or cannot control bad behavior of its managers in local stores.

The evidence is clear that Walmart is a highly centralized organization whose edicts from its Bentonville headquarters shape and control behavior across all locations. In more than 40 wage and hour class action suits that the company has lost and/or settled in the last decade, the company raised the same argument it presents in the current case: The company does not discriminate, bad behavior of individual managers or supervisors may occur in select locations and therefore alleged victims should take these incidents up on a case-by-case basis.

The reason many of the courts rejected this argument in wage and hour cases and the reason it should be rejected again in the gender discrimination cases is that it has been shown that centralized controls and pressures exerted at the company level produced a broad and generalized pattern of legal violations, not a varied pattern across good/bad stores or good/bad managers.

In a Massachusetts case, for example, all 44 of Walmart's stores had numerous violations across many years, a pattern shown in multiple cases across the country. It was the systemic pattern of violations, not any variation that needed redress.

Moreover, Walmart demonstrated proof-of-concept for this argument when it decided to change behaviors to either cover up or fix its wage and hour problems. In the middle of the lawsuits involving missed rest breaks, a centralized edict told managers to stop requiring employees to punch out and back in for their rest breaks. Because this practice ended immediately nationwide, additional evidence was no longer available of failure to provide required rest breaks.

Similarly, to end another illegal practice of working through required meal breaks, Walmart's centralized information technology staff changed cash register software so that cashiers could not use their machines during scheduled lunch periods. As a result, these violations virtually disappeared. In short, when the company wants to implement or change a manager or employee behavior, it uses its centralized resources to achieve organization-wide compliance.

The Supreme Court should also consider the broader issue of how employees can voice their concerns, stand up for their rights at work, and achieve organization-wide changes.

No individual Walmart employee would dare run the risk of challenging the company on her own. Fear of retaliation or discharge is a powerful deterrent, especially in labor markets where five to six unemployed workers compete for every job opening. The other logical option-organize a union or professional association to bargain for fair conditions-is also not available given the ferocious and 100 percent successful union avoidance policies of Walmart and the vast majority of other U.S. companies.

If Walmart and other American employers are determined to deny their workers the chance to organize and have an independent voice at work through unions or professional associations, that leaves collective legal action as their only remaining recourse for standing up for their rights. That makes the U.S. Supreme Court literally the last stand for Walmart women, men, and their working peers across America.

The opinions expressed in this commentary are solely those of the author.

By Thomas A. Kochan:
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