The next several weeks will be seemingly devoted to our nation’s largest retailer, second-largest corporation and largest private employer. In case you have not guessed, or if you missed last week’s post (you can click here if you did) that distinction goes to Wal-Mart. Now, we are not going to be appraising Wal-Mart’s general business model or financial strategy. Some say it ultimately works, others say not so much. Wal-Mart has been in the news a lot, particularly with respect to its employment practices. Join The Emplawyerologist after the jump where we begin our series on the many things employers can learn from the retail giant.
Whether you like Wal-Mart or not, the sheer number of employment lawsuits it has faced over the years, and particularly, recent years, can be a treasure trove of real-life examples of employer do’s and don’ts. Some might argue that that alone is reason to be grateful to Wal-Mart! Most likely, after all, very few of you are in a position to risk the same level of liability. What we can do, however, is look to Wal-Mart, in some cases as examples of what not to do– or at least what can be done differently to avoid the same issues and liability.
There are probably few if any employment law violations that Wal-Mart has not had to face. Here are just some examples that The Emplawyerologist will cover in more detail over the coming weeks:
- Disability Discrimination: Wal-Mart has faced a number of class action, EEOC and individual employee lawsuits alleging its failure to provide reasonable accommodations both to applicants and employees. Those allegations, if true, form the basis of claims under the ADA and, some state laws as well.
- Sex Discrimination: These lawsuits have asserted that Wal-Mart has subjected female employees to harassment, demotion, and discrimination regarding training and promotion opportunities as well as pay.
- Age Discrimination: These types of cases have involved allegations of being treated more harshly than younger workers.
- Wage and Hour Violations: Wal-Mart has been on the receiving end of a lot of lawsuits in this area. At least a few of these lawsuits involve allegations of requiring employees to work overtime without paying them overtime wages, failing to pay minimum wage, failing to provide meal and rest breaks as required in certain states, and, in some cases, requiring employees to work without paying them at all for at least some of the time worked.
- Hiring/Exploiting Illegal/Undocumented Workers: This is fairly self-explanatory to the extent that the workers are not documented or otherwise not eligible to work in the United States. However, some of the lawsuits allege that Wal-Mart, took advantage of the workers’ undocumented status, and subjected them to horrific working conditions.
- Workplace Safety Violations: There has been at least one case involving a Wal-Mart driver that apparently was required to work long shifts and who, as a result, often did not sleep for more than 24 hours, in turn resulting in a fatal crash.
- Religious Discrimination; At least one Wal-Mart case involved an employee allegedly threatened with termination for observing his Sabbath.
- Union Busting: Wal-Mart has gained a reputation for being staunchly anti-union — and for illegally attempting to prevent union organizing. That is a violation of the National Labor Relations Act.
- Workers’ Compensation Retaliation: Wal-Mart has also been accused of retaliating against workers who, after sustaining work-related injuries, file workers’ compensation claims.
- Race Discrimination: Wal-Mart has settled at least one lawsuit alleging discriminatory hiring and recruiting practices for truck driver positions, which adversely impacted African-American candidates.
- FMLA Violations: Earlier this year a former Wal-Mart employee filed suit, alleging that he was terminated after requesting FMLA leave. (He also alleged that he was replaced by a younger worker, which also makes this an age discrimination claim).
- Co-Employment Issues: Wal-Mart often uses contractors and staffing agencies to provide extra workers. With some of these contractors and staffing agencies, the employment practices have ranged from somewhat shady to downright atrocious. Not long ago, a federal district court allowed the plaintiffs to add Wal-Mart as a defendant, under the theory that Wal-Mart is a joint employer. (Click here for a review of the concept of co-employment.)
Wow! That’s a lot of exposure for one company! Why can’t Wal-Mart stay out of court???? Some might argue that Wal-Mart is not really looking to do so and can afford to fight these lawsuits. Again though, since the vast majority of you are not Wal-Mart (sorry, I’m not looking to rub that in — really!) and do want to stay out of court, let’s see what you can learn from Wal-Mart in order to stay out of court. (As I said above, this series may turn out to be more a lesson in what not to do!)
We’ll start next week with disability discrimination cases. Join us then!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent local employment counsel on any issues discussed here.
Click here to learn more about Janette Levey Frisch, author of The Emplawyerologist.
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