Does Wal-mart need a hall monitor?

Posted on June 30, 2006 by Christopher McKinney

Does Wal-Mart need court-appointed monitors at its stores to ensure that it complies with FLSA rest and meal break laws? That question is being wrangled over right now in a California courtroom.

The case, Savaglio v. Wal-Mart Stores, already resulted in a $172 million dollar verdict against the company. Now the court has turned to the injunctive relief sought by the plaintiffs. It is rare for meal and rest break class actions to reach a trial verdict, as opposed to a settlement. As a result, the outcome of this case could offer some insight into what measures a court might be willing to impose on a recalcitrant company.

The plaintiffs in the Savaglio case are asking the court to appoint a third-party company to act as a monitor and for Wal-Mart to undertake audits and report its compliance. The plaintiffs also want a court order enjoining Wal-Mart from asking employees to sign away their right to meal breaks; some companies have used this tactic by applying coercion to their employees to obtain such an agreement.

Walmart is being represented by Susman Godfrey and Gibson, Dunn & Crutcher.

The plaintiffs are represented by The Furth Firm.

More on the story from Law.com (subscription may be required).

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Here's your grande, double-foam, half-caf, carmel frappawhutzit...and a summons.

Posted on June 28, 2006 by Christopher McKinney

Starbucks is getting sued for alleged overtime violations...again.

In a 2002 case, Starbucks paid $18 million to settle a suit brought by more than 1,000 store managers and assistant managers in California. The settlement shaved 3 cents per share off the company's earnings in the quarter in which it was paid.

Now a California manager is back for round 2. Steve White, who worked at Starbucks in California alleges the company owes him and other managers unpaid wages plus interest and compensation for working "off the clock" and missing meal and rest periods. The lawsuit, filed Wednesday in U.S. District Court in San Francisco, is seeking class-action status for thousands of managers who worked at California Starbucks stores over the past four years.

The suit asks for restitution in the form of an hour of pay for each workday that a meal and rest period was not provided, as well as unspecified punitive damages.

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Did you remember to lock the supply closet?

Posted on June 26, 2006 by Christopher McKinney

According to a recent Spherion survey, one in five workers age 18 to 24 did not feel it was wrong to take home office supplies. And take them home they do, to the tune of more than $50 billion per year. That's alot of paperclips. (In fact, given the going rate for paper clips - that's more than 100 billion boxes!)News sources are commenting on the fact that the study indicated that younger workers were twice as likely to take office supplies home than older workers and a high percentage of them didn't even consider it to really be stealing. Or perhaps, this just indicates that younger workers are less apprehensive about telling the truth in an online survey.

Because regardless of your age . . . it's hard to give up such a nice stapler.

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More on Burlington Northern v. White

Posted on June 23, 2006 by Christopher McKinney
Factual Recap:Sheila White was the only woman in her department of forklift operators at Burlington Northern's Memphis train yard in 1997. After only a few months on the job, White complained of sexual harassment by her boss. She was suspended as a result of the complaints.A few days after her suspension, the company told White she was getting transferred to track laborer duties, because other employees complained that White was given the forklift job over more experienced male employees. The track laborer job had the same pay and benefits, but required "dirtier" and "more strenuous" work.White responded to the re-assignment by filing complaints with the Equal Employment Opportunity Commission for sexual discrimination and retaliation. Approximately six months after White was moved to track laborer she was suspended for alleged insubordination. White's pay was withheld for 37 days. She was eventually given back pay when she was found not to have been insubordinate.The Issue: Whether an employer may be held liable for retaliatory discrimination under Title VII for any "materially adverse change in the terms of employment" (including a temporary suspension rescinded by the employer with full back pay or an inconvenient reassignment); for any adverse treatment that was "reasonably likely to deter" the employee from engaging in protected activity; or only for an "ultimate employment decision" (i.e. termination, demotion)?The Answer:A plaintiff must show that a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.' "More Coverage:As always, Nina Totenberg of NPR has some excellent coverage of the decision.
Here is some other coverage of the opinion:Washington PostNew York TimesChicago Tribune
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UPDATED: Supreme Court Embraces Broader Definition of Actionable Retaliation

Posted on June 22, 2006 by Christopher McKinney

The Supreme Court has just issued its ruling in Burlington Northern v. White, unanimously holding that a worker complaining of retaliation on the job for having complained about bias may sue even if that individual has not suffered an ultimate adverse action such as firing or denial of promotion. Other actions, such as reassignment to a less attractive job or a temporary suspension without pay can constitute retaliation.

We will have more on this opinion soon. In the meantime for some background, you can see our previous posts on this case here, here, and here.

UPDATE:

Boil the opinion down to one sentence:

"We also conclude that the [anti-retaliation] provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant."

Here is a link to the opinion.sexual harassmentCategories: CourtOpinions

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Some Arbitration Issues

Posted on June 19, 2006 by Christopher McKinney
Several arbitration issues for your consideration today. First, Ross's Employment Law Blog has an interesting article in which the NLRB holds that a mandatory arbitration policy adopted by a nonunion employer violated the National Labor Relations Act because the employees could reasonably construe the broad language in the policy to prohibit the filing of unfair labor practice charges with the Board.In yesterday's Sunday edition of the New York Times, the paper had a lengthy article regarding arbitration in securities cases and the growing unease with the arbitration process on both sides of the bar. The article notes that individuals are at a particular disadvantage in the security arbitrations setting (and frankly in any arbitration setting) due to the bias of many arbitration panels in favor of the industry institutions for which they were previously employed. On the company side, many are finding arbitration to be just as expensive and time-consuming as old-fashioned litigation.Personally, I have never been a big fan of arbitration from the viewpoint of individuals or companies. I've tried an awful lot cases and, frankly, juries usually get it right. I think the founding fathers were correct in making trial by jury a constitutional right in the first place. The Supreme Court's relatively recent decisions allowing citizens to, for all intents and purposes, be forced to give up that right by contract is increasingly being seen as a mistake by both individuals and organizations.Lastly with regard to arbitration, here are some new rules. The American Arbitration Association has issued new Rules for Arbitrations of Employment Disputes. You can find the new rules here.
Categories: HRPoliciesSexual Harassment Pregnancy Discrimination Age Discrimination San Antonio Employment Lawyer Texas Employment Lawyer Texas Sexual Harassment Age Discrimination Texas Overtime Texas Age Discrimination
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Quote of the Day

Posted on June 19, 2006 by Christopher McKinney

"To some lawyers all facts are created equal." -- Felix Frankfurter

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Free Massage and Yoga Classes at Work: Are the '90s Staging a Comeback?

Posted on June 12, 2006 by Christopher McKinney

This article from Reuters covers an increasing trend among the companies of providing their employees with high-end luxury services such as massage and yoga classes. So is this a return to the 90's all out competition between companies to see which could be more outlandish with regard to employee perks. Not really.

While the uptrend in the economy does appear to be making companies once again conscious of their need to compete for top talent, the major motivation appears to be the realization by corporate management that happy and health employees are far more productive than a bunch of worker drones that suffer from the general malaise associated with cubicle-land.

Once thought to be only for aging hippies, yoga and massage are now both enjoyed by a wide cross-section of Americans. The health benefits of both are well-documented. Research shows massage can lower stress, tension and fatigue, and one study in the International Journal of Neuroscience even showed people given massage therapy proved more alert and calculated math problems faster and more accurately.

While calculation of the bottom-line monetary value of such programs is difficult, companies that have implemented such programs report decreased rates of absenteeism and attrition. And these are the two highest "avoidable" labor expenses in many companies.

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HRPolicies

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Update: You've Got Mail! . . . You're Fired!

Posted on June 6, 2006 by Christopher McKinney
Update (6/12/06): The New York Times has caught up with us on this issue and printed this story.
According to a recent survey of nearly 300 US firms with 1000 or more workers, almost one- third of companies have fired an employee in the last 12 months for e-mail related policy violations. More than half have disciplined employees for such reasons.

According to this Market Watch article describing the study, employers are really starting to grasp the notion that e-mail communications present significant liability risks to the company. As a result, nearly 40% of companies that answered the survey indicated that they employ staff members whose job description is toreview and analyze internal e-mail messages.

The message to employees could not be more clear: Do not consider anything communicated through e-mail to be private in any way! The rule of thumb I give all to my employee-side clients is to pretend that every e-mail message they write is being cc'd to their direct supervisor and the company's HR department. If you would not want these people to read your message, then it probably ought not be sent.(And in case you were wondering, YES, this applies to instant messaging too!)Categories: HRPolicies
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Monday Morning Humor: Adding Insult to Injury

Posted on June 4, 2006 by Christopher McKinney

I have been out of the office for about a week now and am just getting back in to deal with the moutain of mail, email, phone messages, etc. You know the drill. Anyway, sorry about the lack of posting. I'll try to get back up to speed as quickly as possible.

In the meantime, here is a fun picture of an actual sign from a new blog I found that collects strange odds and ends. Not really HR-related but seemed like something that would fit for a Monday morning.

If you want more, you can find the site here. (WARNING: None of the pictures are pornographic or anything but some involve potty humor (quite literally) and might not be appropriate for at-work viewing.)

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