Wal-Mart gets spankedFollow

Jewel Osco, if you would count that? Or Albertson's? They are right on for breaks. And if your 1 second late from your 15 minute break, you have the manager up your *** on why you were late.

Jewel Osco was recent, union and didn't require clocking out. So that might explain some things, but I did have one job long ago that if you took a break, whether you worked 2-10 hours you had to clock out of your own time. And if your caught taking a break and not clocked out your fired. Course a kid was murdered there and business is really bad there, so I guess they are tight on money. Meh. Damn Italian bastards they were.

I worked at both Winn-Dixie and Krogers before 2001, and both were strict about clocking in and out. But these stores were in Texas.


Winn-Dixie has the same anti union attitude Wally does. Kroger was a union chain, but being a right to work state, only idiots joined the union.

Ok. So it sounds like it's more of a mixed bag, depending on a number of factors. Interestingly enough, union membership doesn't seem to be as much of a factor as I thought, but geographic location does.

Maybe California businesses are traditionally more lax then other states? Dunno. All I can say is that in my experience, and the experience of everyone I know that I grew up with in California, clocking in and out for breaks and lunches is virtually non-existant.


Now. One could then assume that the new law was intended to force businesses to do exactly that, but the law doesn't spell that out. It doesn't require that businesses track this. It just says that if an employee has to work more then 5 hours straight without a lunch break, he is entitled to an hours free pay. There are currently several issues that will specifically impact the Walmart case:

- The code does not specify whether the hours pay is a wage or a penalty. Most legal experts classify it as a penalty and not a wage, and earlier drafts of the code called it a penalty (and it fits the criteria for a penalty). The rulling on this component of the code will nullify about 2/3rds of the finding in the Walmart case since you can't sue for damages on top of penalties. The penalty *is* the punishment for failing to comply. You can't heap more penalties on top of that.

- The code does not specify when that lunch period must begin. It simply says that any employee working for 5 hours must be given a lunch period of 30 minutes. However, this has been interpreted to mean that the employee must be given lunch prior to the 5th hour of work (which is not stated in the code). So in the Walmart case, many of those complaints that are based on employees not being given a lunch hour in the first 5 hours (but perhaps did recieve one in hour 6, 7, or 8) might be spurious as well. There's a *lot* of debate on the correct interpretation of this law, and there's no indication that the writers intended to require that lunch be taken by a particular time period, but only that one occur at some point in any shift of 5 hours or longer.

- An addendum to the penalty issue. If it's found to be a penalty (which is the direction the law looks to be going), then not only is the penalty in the lawsuit reduced, but also many of the cases in the class action will have to be removed as well. Apparently, there's a statute of limitations on when you can sue for penalties (which I'd touched on earlier). You have one year after a labor violation to file for the penalty. It's the responsiblity of the employee to bring such an action (assuming he's denied directly, and I've yet to find *any* source saying that these 116,000 employees all asked for compensation for late lunches and were denied by Walmart). This ties into something I said earlier. You can't wait 2-3 years after the fact and then sue Walmart enmasse for damages in a case like this. Assuming the hour's pay is classified as a penalty and not a wage, then this means that each instance of violation would need to have been made in writting to the company within one year of the violation. I have a feeling that this'll whittle the numbers down to the original "handful" that filed suit back in 2001.



There's a few other issues with the law as well. Apparently, they didn't adequately define "work shift" either. Not sure how applicable this is to the Walmart case, but it's something being debated right now. Point being that this is an absolute mess of a law in which the primary effect has been to spark of tons of litigation. Walmart is hardly alone either (it's just gotten the most press. wonder why?). It's a litigator's wet dream. And that's why it's getting abused.


Additionally, right now the Governator has already ordered the Labor department to clarify the code, and in some cases completely re-write and revamp it so it makes sense (presumably have to be passed back to the legistlature for approval). This would very likely make the Walmart case completely moot.

It's a crappy law. It's being changed. It's specific to California (where we have lots of crappy laws). Odds are Walmart will not end up paying anything remotely close to the amount reported here. Heh. But when the amount is reduced from 150million down to like 10k or so, you'll probably not read about it in the paper, so just pretend that Walmart actually got spanked...

I'm not saying they keep *no* records. Just that not everyone tracks every break and luch period taken.

A disgruntled worker could just as easily claim that his timecard was doctored or that he was forced to check in/out under threat of loss of the job even when he was still working. Or that he was called in to work while on his lunch, but wasn't allowed to clock back in to record it...


Anyone can claim something that doesn't show up in the records, regardless of whether those records exist. I guess my issue with this is that I feel that the employee must prove that he's being denied what he's legally entitled to, not the other way around. At some point, you have to have something other then a claim and a lack of records to the contrary in order to prove damages (or you should, and probably would anywhere other then litigation-happy California).


The fact that I don't have records proving I *didn't* ***** you over for something does not constitute proof that I did. That's like logical fallacy 101, right? I'm not sure on the law here, but unless there's also a law requiring time cards to record each break and luch period instead of a general "time worked", then I'm not sure how you can hold an employer responsible for not keeping such records.


Unfortunately, a lot of this is speculation in this case. I don't know enough details about what Walmart's timecard policies are to say for sure. For all I know they do keep track of breaks/lunches on their time cards, but neglected to ensure that employees took them on time (or perhaps "evilly" prevented them from doing so). My point is that unless you've done more research then just reading the linked article, you don't know that either. I did do a bit of research on the labor law in question, and ran into list after list of issues with it, arguments for changing it, movements from the legistlature and governor of California to re-write it, complaints about its ambiguity, and talk about how many lawsuits its generated purely because its so poorly written.


Based on that, and the significant amount of effort put forth by many groups (whether you agree with them or not) against Walmart for everything under the sun, my suspicion is that this is a case of a group of anti-Walmart folks taking advantage of a poorly written law to get a ruling on an interpretation of said law that allows them to get a huge seeming settlement against Walmart. But it's honestly mostly about generating another in the "list" of "evil things" done by Walmart, and has very little to do with actually hurting Walmart financially. Given what I've read about the law in question, it's almost certainly going to be completely changed and clarified so that the ambiguities that were used to get this reward will be eliminated (as will the reward in this case).


It's *obvious* that this wont stand. But it makes really great news...

None. I've never worked a union job nor been part of a union.
None in California but all pre-2001. But I'm willing to bet that WalMart, being an international business, has pretty universal policies and doesn't vary them much from state to state unless a singular state is noticably more draconian in its laws.

I'm not sure if punching a clock for breaks is as universal as doing so for lunches, but it was lunches that WalMart got dinged for so the break thing is kind of moot.

And ninjas could steal the time cards and sell them to the Japanese mafia. But neither scenario has jack to do with the Walmart case since no one is filing a complaint that the cards are forged or in error.

Edited, Sat Jan 7 00:42:27 2006 by Jophiel

Not remotely. I've been staring at the same laws on the labor posters in breakrooms since the late 80's in Illinois.

Perhaps the penalties were harsher (I never looked up the Illinois penalties and ain't about to now), but the legally mandated lunches and breaks are nothing new.
You keep saying that and yet no one here has mentioned working for a retail company that did anything close to what WalMart is being accused of. Do you have cites for all these other companies "doing the same thing" and getting away with it or is this just something you feel will become true if you keep saying it enough?

Edited, Mon Jan 9 18:15:32 2006 by Jophiel

[quote=Jophiel]
Perhaps the penalties were harsher (I never looked up the Illinois penalties and ain't about to now), but the legally mandated lunches and breaks are nothing new.
[quote]

The legally mandated lunches and breaks are not new. You are correct about that. However, the 1 hour penalty for failure to provide a lunch or break *is* a new law. It was passed in 2001.

That's the issue here. This isn't a group of people suing Walmart because they didn't get their lunches and breaks. This is a group of people suing Walmart because they didn't get their 1 hour of pay for each time they didn't get their lunches and/or breaks. Huge difference. That's why it's significant that the 1 hour of pay is a penalty and not a wage. You can sue for lost/late/whatever wages at any time. You can only claim penalities for some violation within 1 year of the violation. That's how the law applies in this case. You also *can't* attach punative damages to a penalty suit either, since the penalty *is* the punishment to the company for failing to do something (in this case, provide lunches and breaks on time). You can't stack penalties on top of penalties in California law.


And again. This is specifically a suit to collect those penalty payments for missed lunches and breaks. The law in question was passed in 2001. So, Walmart taking until 2003 to change its methodologies to ensure that they were in compliance is not particularly unusual (especially if we assume that they didn't track specific lunch/break times prior to 2001). I just don't find it to be that huge of a deal, and I'm betting that on appeal this'll end up being a much smaller reward then what we saw in the earlier article. I didn't spend hours of time researching or anything, but in the time I did spend, the conclusion about how this law *should* be applied was pretty much universal. The 1 hour is a penalty. You can't assess punitive damages onto that, and they must be claimed within 1 year of the violation. That's going to completely destroy the whole class action suit since everyone added in in the class action part can't actually legally qualify for an award in this case. Only the original claimants can claim an award, and that's the "handful" that filed back in 2001.


We'll see how it goes, but I'm virtually positive that this'll get turned over on appeal, and we'll end up with less then 10k in final damages to Walmart at the end of it.