After 11 weeks of semi-intense focus on the world’s largest private employer, The Emplawyerologist is now wrapping up its series on Wal-Mart. Now, of course, we can still expect to hear more about Wal-Mart and its employment law woes in the news–unless of course, Wal-Mart does what we have been doing over here, by learning from previous lawsuits. Notwithstanding Wal-Mart’s intentions, we have certainly learned some very valuable lessons. Where does that leave us now? After the jump, The Emplawyerologist will tie it all together for you!
We started this series by examining cases alleging ADA/ADAAA violations (Click here for review). The employees in most of those cases alleged refusal to provide reasonable accommodations for their disabilities. In at least two cases, Wal-Mart rescinded accommodations it had previously provided, either because it had adopted a new, automated system that did not consider individual circumstances or for no apparent reason at all. These cases were not confined to only one store, or even one region within the United States, suggesting an across-the-board lack of awareness by Wal-Mart managers of ADA requirements. across-the-board.
We looked at workers’ compensation cases, (Click here.) where Wal-Mart managers allegedly engaged in retaliatory measures against workers invoking their workers’ compensation rights. Another case alleged conspiracy with an insurance carrier and claims adjuster to inhibit medical providers from exercising independent judgment as to the best care for injured workers. The retaliation cases suggest either a managerial lack of awareness or lack of concern about the illegality of retaliating against employees who invoke their workers’ compensation rights. Either possibility in turn suggests that the top brass has either a) failed to communicate and/or train on this issue; or b) failed to enforce its policies prohibiting retaliation (In most of these cases Wal-Mart seems to have produced appropriate policies. More on this point later.)
The wage and hour cases (click here) showed Wal-Mart defending itself against allegations that its managers compelled employees to work “off the clock”, work through state-mandated meal and rest breaks, report early, without being paid, for work, and work late, without being paid. These cases also included allegations of managers being pressured by the top brass to show lower wage payments, as part of an effort to effectuate greater profit margins. Those allegations, if true, would indicate either that the upper echelons at Wal-Mart knew what they (and their managers) were doing and purposely gambled or gave no or unclear direction to its regional or middle managers. I’ll come back to this point too.
In our review of sexual discrimination cases (click here) we saw blatant examples of the persistent application of antiquated sexual stereotypes. I have to believe that these managers knew that in the 21st century these stereotypes are not accepted. Further, Wal-Mart does have policies in place prohibiting refusal to promote qualified women or pay them as much as their similarly situated male counterparts. Even so, did it communicate and enforce those policies or monitor compliance? For such blatantly disparate treatment to have occurred in different locations within the U.S., rather than one specific location or region suggests that one or more of those measures was missing.
The sexual harassment cases we examined (click here) and the racial/ethnic bias/harassment cases (click here) also showed disturbing patterns. All of the cases involved wildly inappropriate sexual or ethnic slurs or innuendos and the sexual harassment cases also included inappropriate, non-consensual touching. In just about all those cases, the employees complained to management, who did nothing. The pattern here seems frighteningly obvious.
How about religion? (click here). Some of Wal-Mart’s managers seem to understand the need to provide reasonable accommodations to employees engaging in practices arising out of sincere religious beliefs. Wal-Mart encountered trouble when, allegedly it either refused accommodations altogether, forcing an employee to choose between their job and their religion (when an accommodation was feasible) or where they rescinded a previously provided accommodation because of blanket policy or system changes. Employers making these types of changes need to be able and willing to make adjustments for the very circumstances at issue here or risk being liable under Title VII of the Civil Rights Act of 1964 —and applicable state anti-discrimination laws.
We saw FMLA cases (click here) where Wal-Mart allegedly treated employees differently after they took leave under the FMLA. In one case an employee alleged he was replaced while he was on FMLA leave. In large part the timing of its actions gave rise to a strong suspicion of FMLA interference and/or retaliation in each of these cases.
What does all this mean? The more cynical view is that the top brass knew exactly what it was doing then and has made conscious decisions to cut corners and gamble on not being called out, in an effort to cut its costs and increase its profit margins. Giving Wal-Mart the benefit of the doubt, we might say that there seems to be both a significant communication breakdown between the more centralized top brass, and its store and regional managers as well as a failure to follow through by enforcing and monitoring compliance with its policies and procedures. Wal-Mart as the world’s largest private employer, undeniably has many moving parts. As such, even under the best of circumstances, it is unrealistic to expect all its stores and all its regions to get everything right all the time. Be that as it may, these patterns provide the rest of us some take-aways, which include:
- Take allegations of discrimination (or other illegal activity) seriously–and respond promptly and appropriately. Had Wal-Mart done so it might have prevented at least some of the disability, sexual and racial/ethnic discrimination/harassment cases, we discussed.
- Similarly, take requests for reasonably accommodations for disabilities and religious practices seriously and respond promptly and appropriately.
- Having policies and clearly stating what behaviors you will not tolerate is great–but that’s not enough! If you don’t care enough to follow through with consistent enforcement and monitor compliance why should your managers and other employees? If you do not make employment law compliance as much of an priority as productivity, cost cutting and profits, neither will your managers–and you could end up facing the same consequences as Wal-Mart.
Now, I understand that there are a lot of employment laws out there and the laws change quickly. How can you know and understand all those laws and nuances? Even a lot for your HR representatives and managers will have fully grasping all of them at times–but don’t despair! Ask for help! Reach out to competent experts, such as labor and employment counsel. Yes, there is help, and –not to sound hokey- there is hope!
Join The Emplawyerologist next week when we take a look at the employment law cases up for review this term before the United States Supreme Court! See you 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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