The Supreme Court’s landmark decision on Monday in Wal-Mart v. Dukes understandably garnered front-page headlines in the nation’s newspapers. After all, the case was the largest employment discrimination case in history, dwarfing all other competitors by far with its potential to have included more than one-million current and former female Wal-Mart employees.

But in reality, this mammoth pattern and practice class action was decided December 7, 2010. That’s the day the Supreme Court agreed to hear the dispute. The women who brought this 10-year-old case had won every step of the way. In fact, Ninth Circuit Judge Susan Graber said in her 2010 concurrence in one of the plaintiffs’ victories, “There is nothing unique about this case except for its size.”

As it turned out, however, size mattered. There was no direct circuit split on this issue. Indeed, there was no other case that was truly directly on point. So when the Supreme Court decided to wade into the fray, there was no chance it was doing so to pat the West Coast appellate court on the back for a job well done. Instead, the Court was going to place limits on class actions.

Lead plaintiffs’ counsel Brad Seligman fought hard and fought well throughout this ten-year-old litigation. But a case that could have led to billions of dollars in litigation was going to face a difficult hurdle at the nation’s highest court, and it did. The cries that plaintiffs now cannot proceed in employment class actions, however, could be premature.

The Wal-Mart case included hourly greeters, company vice presidents earning six figures, and female employees in all sorts of jobs between those extremes. The claim by the plaintiffs’ attorneys that Wal-Mart provided “unchecked discretion” to its managers was one that swing voter Anthony Kennedy undoubtedly found difficult to square with the allegation that the company had a top-down culture of discrimination emanating from Wal-Mart’s Arkansas headquarters.

In fact, during the oral arguments Justice Kennedy said as much when he wondered aloud what the unlawful policy was. “It seems to me there’s an inconsistency there,” he said. “If it’s standardless and recordless, then why is there commonality?” If there was any doubt as to the outcome, that comment and question put it to rest.

This was less a case of Wal-Mart being “too big to sue” than the majority of the justices wondering how 1.5-million women at 3,400 stores in widely divergent positions could have something in common besides their gender.

The opinion was notably silent, however, about whether or not the retailer had engaged in sex discrimination. And, it leaves open the possibility of smaller groups of employees banding together, ideally from similar job classifications.

Wal-Mart’s attorney Theodore Boutrous said immediately following the decision, “Under [this] ruling, the way we read it, no class can be certified in this case.” But that seems to be more than a bit of hyperbole.

Will it be tougher for plaintiffs to proceed? Unquestionably. And when they do so, the litigation will be much smaller in scope. But the women and those who represent them have vowed to continue fighting Wal-Mart over what they see as unequal treatment. Smaller class actions against other big companies have succeeded before and likely will again. Those cases just need to be more focused than ever on complying with the Supreme Court’s call for commonality among class members.

About the Author: David Weisenfeld served as U.S. Supreme Court correspondent for LAWCAST from 1998 through June 2011. During that time, he covered every employment law case heard by the Court including Wal-Mart v. Dukes, and also wrote and co-anchored the company’s employment law newscasts. In addition, his work has appeared in the American Bar Association’s Supreme Court Preview magazine.

Today the Supreme Court sounded the death knell for Dukes v. Wal-Mart, the class action lawsuit accusing Wal-Mart of paying and promoting women less than similarly- or less-qualified men. To protect corporations from having to do more to prevent gender discrimination than pop a few politically correct paragraphs into the employee handbook, the Supreme Court resorted to a belabored procedural argument that incentivizes corporations to do as little as possible to prevent discrimination. The five-Justice majority did not rule on whether or not Wal-Mart actually discriminates against women – they didn’t let the case get that far. Instead they shut it down by changing the rules of engagement.

One of the plaintiffs’ central arguments was that Wal-Mart has a policy of leaving promotion and pay decisions to the discretion of individual managers, and that these managers have made discriminatory decisions. If the women suing Wal-Mart had prevailed, every American employer would have been on notice that it is not enough to sit on their corporate hands and allow gender discrimination to take its natural course in this way. Instead they would have had to make it their business to ensure that their managers treated women fairly. But the Court didn’t want that, as the majority feels that “allowing discretion by local supervisors” is “a very common and presumptively reasonable way of doing business.” (In his opinion for the majority Justice Scalia also announces, without citing any evidence, that most managers work carefully to avoid discrimination in their pay and promotion decisions when left to their own devices. That makes it all the more puzzling why the higher one gets in the corporate hierarchy in the U.S., the fewer women there are.)

So the Supreme Court looked to procedure. To bring a case as a class action in federal court, the plaintiffs have to get permission from the judge to proceed as a class. This makes sense: you wouldn’t want someone to be able to file a lawsuit on your behalf without an objective outsider considering whether the lawsuit was in your interest and whether the person filing it would represent you well. To protect you from becoming part of a class action that doesn’t benefit you, plaintiffs have to persuade a judge that they satisfy the requirements of what is known as Federal Rule of Civil Procedure 23 before their lawsuit can proceed as a class action.

One of Rule 23’s prerequisites is that “[o]ne or more members of a class may sue…as representative parties on behalf of all members only if there are questions of law or fact common to the class.” The Wal-Mart plaintiffs clearly alleged common questions of law or fact, including statistical evidence that Wal-Mart pays and promotes men more than women; Wal-Mart’s policy of leaving decisions regarding promotion and (within certain ranges) pay up to individual managers; evidence that Wal-Mart has a uniform corporate culture across its stores; and evidence that Wal-Mart’s culture fosters discrimination against women. These are precisely the kind of “common questions of law or fact” that courts routinely accept as satisfying the Rule 23 “commonality” prerequisite.

The Court used this previously clear “common questions of law or fact” requirement to thwart the Wal-Mart women by redefining the requirement beyond recognition. According to Justice Scalia, “common questions of law or fact” now means that plaintiffs must “demonstrate that the class members have suffered the same injury.” In no universe that I have visited do these two phrases require the same thing.

It’s not clear just how far the Court will take this bizarre new rule. Does “same injury” mean that the plaintiffs must show that every single class member was denied the exact same promotion? Or that each one was underpaid by the same amount? Scalia writes that it does mean that suffering “a violation of the same provision of law” won’t suffice as suffering the “same injury.” This is a remarkable and counterintuitive holding: after this ruling, a group cannot sue their joint employer for violating the same legal right for each one of them. Instead they have to prove that the legal violation harmed them in the same way. This is completely backwards: courts exist to redress violations of the law, regardless of whether those violations cause their victims to suffer in the same or different ways. It is thanks to this procedural backflip that Wal-Mart and other employers can now delegate their way out of being responsible for discrimination in their workplaces.

Arguably before Monday’s Dukes v. Wal-Mart decision, American employers were subject to legal liability if they delegated so much discretion to individual managers that those managers created a pattern of discriminating against women – at least, the four Justices in the minority believe that this was the law. Now employers have every incentive to take their hands off the reins and let managers make pay and promotion decisions based on whatever criteria they choose. This is a major loss for women, minorities, senior citizens, the disabled, and any other group that tends to get the short end of the stick in the workplace. The procedural manipulations required to reach this point have caused a major loss for any group of people that seeks to redress a legal violation through a class action: now each individual will have to pay for legal representation alone and probably forego evidence of violations against similarly situated people. Goliath has won, and it is every David for himself.

This blog originally appeared on PiperHoffman.com on June 21, 2011. Reprinted with permission.

About The Author: Piper Hoffman is a writer and employee-side employment lawyer. She holds degrees with honors from Harvard Law School and Brown University. Hoffman blogs regularly on law and social justice issues at piperhoffman.com.

A U.S. District Court in Texas ruled that a  Houston P.F.Chang’s restaurant may have violated the Americans with Disability Act when it fired one of its restaurant managers three days after he disclosed that he had a brain tumor.

On June 8, 2009 Jason Meinelt was diagnosed with a brain tumor. He told his boss, Michael Brown, the same day and also told him that he would probably have surgery in August and could be out for six to eight months.  Brown was supervised by Glenn Piner.  Bown told Piner immediately about Meinelt’s condition.

Two days later, Piner began an audit involving  employee clock-out time punches.

The next day, Meinelt was fired for improperly editing employees’ time records. Meinelt testified that he was “completely baffled” and “shocked” about the firing and that editing time was a common practice among all of the managers including the ones who preceded him.

P.F. Chang’s first argument, that Meinelt’s brain tumor was not a disability, was rejected by the Court. Under the ADA, a disability is a “physical or mental impairment that substantially limits one or more major life activities.”  The ADA was amended in 2008, and the amendments specifically included cancer in its definition of what may be considered a disability. As the Court noted,

Under ADAAA, “a major life activity includes the operation of a major bodily function, including but not limited to,… normal cell growth .. [and] brain .. functions. 42 U.S.C. s. 12102(2)(B). The disability test can be met by actually suffering an impairment that substantially limits a major life activity or “being regarded as having such impairment.”

Therefore, since Meinelt was terminated after the ADA Amendments Act of 2008 came into effect, he was covered under its “more expansive definition” of disability according to the Court. As to P.F. Chang’s contention that Meinelt was fired because of the time entries, the Court had this to say:

[T]here is undisputed evidence of the temporal coincidence of Meinelt revealing his medical condition and the employer’s decision to fire him. The record contains ample evidence supporting an inference that Piner’s belief that Meinelt had improperly edited time was not the reason he terminated Meinelt. Piner fired Meinelt only tree days after Brown told Piner about Meinelt’s tumor. ..(citations omitted)

Summary judgment on the ADA claim is denied.

This decision means that Meinelt has the opportunity to take his case to the jury but it has broader implications.  It’s another victory for cancer victims who have been discriminated against by their employers.

Before the ADA amendments, these types of cases were routinely thrown out by courts which narrowly interpreted the ADA and held that the employees with cancer were not disabled — and therefore not protected from disability discrimination. Those same arguments, raised by P.F. Chang’s in this case, failed and it’s about time. For another case on point  see here. For more about cancer discrimination and the workplace, see here. For the Meinelt opinion, see here.

This blog originally appeared on Employee Rights Post on June 10, 2011. Reprinted with Permission.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. Today, Ellen offers legal advice to individuals with legal problems surrounding employment rights, age/gender/race or disability discrimination, workplace retaliation and sexual harassment.

The improved jobs figures out last Friday obscured the ongoing decline in public-sector jobs. As the U.S. Bureau of Labor Statistics noted when releasing the March unemployment data:

Employment in local government continued to trend down over the month. Local government has lost 416,000 jobs since an employment peak in September 2008.

The loss of such jobs is important because the nation’s well-being depends not only on job numbers increasing, but on the creation of quality jobs—those that pay decent wages and enable people to attain or maintain a middle-class life. According to National Employment Law Project (NELP), the new jobs being created aren’t as good as the ones that have been lost. NELP found that jobs in lower wage industries, such as retail and food preparation, made up 23 percent of the jobs that were lost in the recent recession. Yet they made up 49 percent of the jobs the economy has gained in the past year. As the BBC Business puts it:

In other words, it appears that while people may finally be returning to work, they have to work for less pay.

In contrast, jobs in the public sector have provided such economic stability. They have also made it possible for some of the nation’s most economically marginalized—women and minorities—to achieve financial security often denied them in the private sector.

So attacks on public employees hit women and black workers especially hard.

Susan Feiner, professor of economics and of women’s and gender studies at the University of Southern Maine, writes that:

employees at the federal (43 percent female), state (53 percent female) and local (61 percent female) levels have been able to better resist the wage reductions, benefit cuts and mass lay-offs that giant multinational corporations have visited upon employees over the last decade.

Yet Feiner finds that “while women represented 57 percent of the public-sector work force at the end of the recession,”

women lost the vast majority—79 percent—of the 327,000 jobs cut in this sector between July 2009 and February 2011, according to a January report by the Washington, D.C.-based National Women’s Law Center.

Steven Pitts, labor policy specialist at the University of California-Berkeley Labor Center, writes today about the striking results of his new research brief, Blacks and the Public Sector. In sum:

• The public sector is the single most important source of employment for African Americans.
• During 2008-2010, 21.2 percent of all black workers were public employees, compared with 16.3 percent of non-black workers.  Both before and after the onset of the Great Recession, African Americans were 30 percent more likely than other workers to be employed in the public sector.
• The public sector is also a critical source of decent-paying jobs for black worker.  For both men and women, the median wage earned by black employees is significantly higher in the public sector than in other industries.
• Prior to the recession, the wage differential between black and white workers was less in the public sector than in the overall economy.

As California Progress Report writes:

For blacks and others, “the best anti-poverty program is union organizing,” the UC Berkeley Labor Center notes on its website.”

And so moves by Republican governors like Scott Walker in Wisconsin and John Kasich in Ohio to shred the ability of public employees to bargain for a decent middle-class life are also specifically targeting the ability of women and black workers to remain in the economic mainstream.

About the Author: Tula Connell got her first union card while she worked her way through college as a banquet bartender for the Pfister Hotel in Milwaukee (she was represented by a hotel and restaurant local union—the names of the national unions were different then than they are now). With a background in journalism—covering bull roping in Texas and school boards in Virginia—she started working in the labor movement in 1991. Beginning as a writer for SEIU (and OPEIU member), she now blogs under the title of AFL-CIO managing editor.

This blog originally was post on AFL-CIO on April 5, 2011. Reprinted with Permission.

March 28, 2011, the US Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC to decide whether the “ministerial exception” applies to teacher at a religious elementary school.

[Details, briefs]

The Equal Employment Opportunity Commission (EEOC) sued the employer, asserting a retaliation claim under the Americans with Disabilities Act (ADA). The trial court dismissed the claim, based on the “ministerial exception” to the ADA. The 6th Circuit vacated the trial court’s dismissal.

The ministerial exception is codified in the ADA (42 USC Section 12113(d)), but it is rooted in the 1st Amendment and has been applied to Title VII and other employment discrimination statutes. The EEOC’s claim arose from the discharge of a teacher from a sectarian school, and the primary issue on appeal was whether the teacher was a “ministerial” employee subject to the ministerial exception. The 6th Circuit noted that “[t]he question of whether a teacher at a sectarian school classifies as a ministerial employee is one of first impression for this Court.”

The 6th Circuit observed that “the overwhelming majority of courts that have considered the issue have held that parochial school teachers … who teach primarily secular subjects do not classify as ministerial employees for purposes of the exception.” The 6th Circuit also observed that “when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church.” Applying those standards, the court concluded that the teacher at issue did not fall within the scope of the ministerial exception. The court noted that the teacher taught secular subjects, and spent only forty-five minutes out of her seven hour workday on religious-oriented activities. The court reasoned, “[t]he fact that [the teacher] participated in and led some religious activities throughout the day does not make her primary function religious.”

The US Supreme Court granted certiorari to review the 6th Circuit judgment.

Question presented in petition for certiorari:

The federal courts of appeals have long recognized the “ministerial exception,” a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. The circuits are in complete agreement about the core applications of this doctrine to pastors, priests, and rabbis. But they are evenly divided over the boundaries of the ministerial exception when applied to other employees. The question presented is:Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

About the Author: Ross Runkel is founder of LawMemo, is Professor of Law Emeritus at Willamette University College of Law. He has spent 35 years specializing in employment law, employment discrimination, labor law, and arbitration.

This blog originally appeared in LawMemo.com on March 28, 2011. Reprinted with Permission.

New report documents how low-wage workers are discriminated against at work based on their caregiving responsibilities at home

A new report by U.C. Hastings’ Center for WorkLife Law details the extreme measures to which low-wage workers must go to keep a job and care for their children or elderly family members—and the sometimes shocking discrimination they face at work despite these efforts.

The first of its kind to analyze caregiver discrimination lawsuits filed by low-wage workers, the report—Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers—exposes mistreatment at work around caregiving responsibilities.  The powerful cases profiled in the report, which attracted the attention of the National Law Journal, include:

• employees encouraged to get abortions or asked about their birth control usage, or sexually harassed because of their roles as caregivers;
• pregnant workers fired on the spot or immediately after announcing their pregnancies, or banned from certain positions no matter what their individual capabilities;
• workers routinely denied access to their legal rights, especially to family and medical leave;
• employees being set up to fail, with unreasonable goals or tasks assigned to them, after caregiving responsibilities are discovered;
• low-wage men who care for children or elderly parents subjected to extreme gender stereotyping at work; and
• pregnant women of color denied access to accommodations regularly granted to their pregnant co-workers of a different race.

Even in family emergencies, the report shows, low-wage workers are refused the small kinds of workplace flexibility that are commonplace for middle-wage and professional workers.  One retail worker whose case is profiled in the report was fired for insubordination for carrying a water bottle at work—despite a doctor’s note recommending she do so to treat recurring urinary and bladder infections due to her pregnancy.

Ironically, small changes by employers can make a significant difference in keeping experienced employees in their jobs.  They can also prevent costly liability: several lawsuits profiled resulted in large verdicts, including four with recoveries of between $2.3 and $11.65 million, despite the plaintiffs’ (a housekeeper, a shipping dispatcher, a bakery delivery driver, and a hospital maintenance worker) low wages.

“Caregiver discrimination lawsuits brought by low-wage workers document clearly that work-family conflict is not just a professional women’s problem.  In fact, it’s most acute and extreme for low-income families,” said study author Stephanie Bornstein, Deputy Director of the Center for WorkLife Law.  “To help families move out of poverty, we can’t just focus on ‘fixing’ the worker.  We also need to look at how caregiver discrimination in low-wage jobs undercuts economic stability.  Discrimination not only hurts workers and their families; it leads to high turnover and legal liability for employers.”

Another case profiled in the report is that of a pregnant woman who was forced out of her retail sector job onto unpaid leave despite her desire to work as long as possible while pregnant.  Her supervisor had allowed her perform all of her job tasks while avoiding heavy lifting, and she was working successfully.  Yet several weeks later, when her doctor sent a letter to the company’s HR office to cement this arrangement, she was immediately sent home and told that she could not be accommodated—in violation of California law.

A soon-to-be single mother, the woman was “trying to do the best she could for her baby,” and was confused as to why she was being sent home when she wanted to work, said Jamie Dolkas, Staff Attorney at Equal Rights Advocates in San Francisco, who represents the woman.  “As a low-wage worker, she was really disenfranchised….[T]hey didn’t take the time to explain to her what her rights or options were—they just gave her something in writing that essentially said we can’t accommodate you, go home,” explained Dolkas.

The report profiles 50 cases—selected from among hundreds identified by Center for WorkLife Law research—of low-wage workers who experienced discrimination at work based on their efforts to be both a good worker and a good parent or family member.

The Center for WorkLife Law is a nonprofit research and advocacy organization that works with employees, employers, attorneys, unions, and policymakers to fuel social and organizational change around work-life issues.  The Center is part of the University of California, Hastings College of the Law in San Francisco.

About the Author: Stephanie Bornstein is an employment attorney and Deputy Director of WLL. Prior to joining WLL, she worked as a staff attorney at Equal Rights Advocates (ERA), a public interest law center focused on gender discrimination in employment and education. At ERA, Bornstein represented plaintiffs in individual and class action employment matters, specializing in pregnancy discrimination and family and medical leave. She was also among a small group of advocates to help author and enact California’s Paid Family Leave insurance program, the nation’s first comprehensive paid leave law. In addition, Bornstein worked as a legal editor of employment law products at Nolo Press, a leading publisher of legal books for non-lawyers.

The promise that 2011 will be a year of economic recovery rings hollow for the workers held back by their past. For many who’ve been in trouble with the law, not even a lifetime is enough to recover from a bad rap sheet.

A brand-new report by the National Employment Law Project shows that people with criminal backgrounds, even those who’ve paid their dues to the state, are unfairly shut out of employment opportunities and denied the second chance they need to overcome their past.

Today, about one in 100 adults in America are in the prison system. Prison releases have exceeded 700,000 per year, according to recent federal data . And many are headed for a job market where the vast majority of employers screen applicants for criminal histories. According to NELP, “more than one in four U.S. adults—roughly 65 million people—have an arrest or conviction that shows up in a routine criminal background check.” All that adds up to a dead end for people who have a criminal taint on their record.

In the midst of fierce competition for scarce jobs, a second chance is hard to come by for people with criminal backgrounds—which could range from an arrest for smoking a joint decades ago, to a more serious conviction for which a sentence has been fully served. NELP’s research reveals that employers across the country routinely post job ads that include blanket clauses disqualifying applicants with criminal records. A compilation of online job listings includes phrases like, “You must not have any felony or misdemeanor convictions on your record. Period.”

(Image via Ban the Box campaign, The Defenders Online)

But civil rights advocates aren’t letting biased employers get the last word. They have launched legal challenges against these exclusionary hiring policies under the framework of Title VII of the Civil Rights Act, which bars discrimination on the basis of race, gender and other protected categories. Since blacks and Latinos are historically overrepresented throughout the criminal justice system—in arrest rates as well as length of the sentence—advocates argue that the words “need not apply” in effect act as a structural barrier to opportunity in communities of color.

The downward spiral of exclusion and marginalization is intensified when the job market is increasingly under the grip of mega-companies. People seeking entry-level jobs in their communities may be completely at the mercy harsh screening policies at major employers like Radioshack, Aramark, and, that bastion of legal rectitude, Bank of America.

There are reasonable arguments for screening applicants for criminal histories, particularly if employers have workplace security concerns. Yet, as NELP points out, there is often little if any connection between a rap sheet and the personality, goals or capacities of the person behind it. A minor drug charge during one’s youth may look like a glaring blight on an application form. But the employer who screens her out automatically will never hear the job-seeker explain in an interview how she’s been sober,  steadily employed for the past ten years, or how the police record was erroneous in the first place and never corrected.

The data, in fact, shows that giving the benefit of the doubt to people with less-than-pristine records pays dividends for employee, employer and society as a whole. In the long run, NELP argues:

The irony is that employers’ attempts to safeguard the workplace are not only barring many people who pose little to no risk, but they also are compromising public safety. As studies have shown, providing individuals the opportunity for stable employment actually lowers crime recidivism rates and thus increases public safety.

A few progressive employment and training programs have emerged to address some of these barriers, but social services alone cannot make up for the economic toll of a criminal justice system aimed at punishment and not rehabilitation, much less helping people build a future from a rough past.

In addition to racial disparities, exclusionary policies may have special impacts on women struggling to to reintegrate into work and family life after prison. A 2008 study published by University of California-Berkeley School of Law examined the economic prospects of formerly incarcerated women and found hidden obstacles that prevent them from staying employed (and out of jail).

When you peel back the stigma of a criminal record, you’ll find much more troubling histories underlying their struggles, including physical and sexual abuse, health problems, and the hardships of long-term separation from their children. Focus group studies with women in the Bay Area suggested that the social services and programs in their communities were inadequate for helping overcome these hurdles.

One of the lead researchers in the study, Monique Morris, told In These Times of how legal barriers to employment, coupled with misguided policies within prison, sometimes reach the height of absurdity:

In a number of instances, women were qualified to work in a field because of work experience while incarcerated, but precluded from working in that same area upon their release because of their criminal record. For example, a number of women worked as fire fighters while incarcerated. But they could not do that work on the outside.

According to the study’s analysis of job applications showing a woman had done time versus those that didn’t, “formerly incarcerated women were 31 percent less likely to receive a positive response from potential employers.”

The consequences go beyond the sting of rejection. When an unalterable stigma is combined with long-term unemployment, being permanently branded as a criminal can lead to crippling self-doubt, frustration, and in some cases, desperation that is deep enough to drive someone back into crime.

Over time, thousands of individuals who are asked to “check the box” on an application form are slowly drained of the will to put their lives back together. That only adds to the sense of hopelessness dogging the country’s working class—building a social prison that our “recovering” economy can ill afford.

About the Author: Michelle Chen’s work has appeared in AirAmerica, Extra!, Colorlines and Alternet, along with her self-published zine, cain. She is a regular contributor to In These Times’ workers’ rights blog, Working In These Times, and is a member of the In These Times Board of Editors. She also blogs at Colorlines.com. She can be reached at michellechen@inthesetimes.com.

This blog originally appeared In These Times on March 24, 2011. Reprinted with Permission.

Hundreds of people will show their support outside the U.S. Supreme Court Tuesday, when the High Court hears oral arguments in what could become the largest class-action civil rights suit in U.S. history.

The Stand with the Women of Wal-Mart rally will take place as the nation’s highest court hears arguments on Wal-Mart v. Dukes to decide whether the case can move forward as a class action.

Ten years ago, a group of women who worked at Wal-Mart stores, led by Betty Dukes, filed a lawsuit alleging the corporation engaged in company-wide gender discrimination by paying women less than men, promoting fewer women to management positions and promoting male employees more quickly. The case, now a class action, has made its way to the Supreme Court.

Wal-Mart is challenging the decision by a lower court to allow the women employed at Wal-Mart stores across the country to join together in a class action lawsuit to challenge pay and promotion practices that discriminate against women.

If Wal-Mart succeeds in keeping these women from joining together, the already uphill battle for women to fight pay discrimination will get even worse. But If the women prevail, their case will become the largest class-action civil rights suit in the nation’s history, with some 1.6 million female Wal-Mart and Sam’s Club employees.

A coalition of women’s, workers’ and religious groups are sponsoring the rally, including the AFL-CIO constituency group, the Coalition of Labor Union Women (CLUW).

In a statement, the American Association of University Women (AAUW), another rally sponsor, says class action can send a strong message to employers to follow the law in the first place. Lisa Maatz, AAUW’s director of public policy and government relations, says:

This case illuminates the dirty little secret that women know all too well — that pay discrimination is alive and well and undermining the economic security of American families.

About the Author: James Parks’ first encounter with unions was at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He saw firsthand how companies pull out all the stops to prevent workers from forming a union. He is a journalist by trade, and has worked for newspapers in five different states before joining the AFL-CIO staff in 1990. He also has been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections.

This blog originally appeared in ALFCIO on March 28, 2011. Reprinted with Permission.

On March 15th, Utah Gov. Gary Herbert (R) signed off on a bundle of four immigration bills which includes proposals that were specifically introduced as proactive alternatives to Arizona’s harsh immigration law. One of the measures would allow undocumented immigrants who meet certain requirements to carry a state-issued guest worker permit. A separate bill would create a migrant worker partnership with Mexico. Another piece of approved legislation will allow Utahns to sponsor migrants wanting to work or study in the state.

GOP delegate coordinators have dedicated a significant amount of time and resources to pushing back against the proposal with robo-calls and a petition. “As GOP delegates, we support the governor and everything he’s done up until now,” said Brandon Beckham, a Utah County GOP delegate who opposes guest worker and sponsorship proposals. “If he signs this bill, I don’t think he’s going to muster enough delegate support to make it past convention.” On the other side of the spectrum, some labor advocates worry that the guest worker permits will “give employers cheap labor without providing additional protections for workers or a path to citizenship.” “It gives illegal immigrants false hope because it makes them think they could become legal,” Ana Avendano of the AFL-CIO said. “But they’re still illegal, and could be deported.”

Gary Herbert

Meanwhile, several Latinos in Utah have been organizing against the other bill that Herbert signed into law today — HB-497. The legislation is a “watered down” version of Arizona SB-1070 that gives Utah police officers the authority to investigate a person’s immigration status if they’re suspected of felony or misdemeanor crimes.

Litigation has been threatened by both sides — immigration restrictionists who argue that the guestworker and sponsorship bills violate federal law and immigration advocates who say that the enforcement-only bill is unconstitutional. While it’s pretty monumental that such a conservative state has enacted a set of proposals that aren’t just aimed at making life completely miserable for undocumented immigrants, both sides of the debate are going to have a tough time arguing that the bill they oppose is preempted by federal law while maintaining that the one that they support is not.

Yet, maybe that’s the whole point. Utah Senate President Michael Waddoups (R) told the Salt Lake Tribune that the signing of the bills is “putting the federal government on notice.” “They’ve been on the sidelines way too long,” Herbert said. “They need to get in the game.” In fact, state officials are reportedly talking with the White House and congressional officials about using the “Utah Solution” as a model for comprehensive immigration reform at the federal level. The laws won’t go into effect for another two years. The U.S. Congress could spend that time to enact a legalization and a worker program that would render all of these state and local initiatives null.

About the Author: Andrea Nill is an immigration researcher/blogger for ThinkProgress.org and the Progress Report at the Center for American Progress Action Fund.

This blog originally appeared on Wonk Room on March 15, 2011. Reprinted with permission.

Employees will march into Reliable Staffing office to demand billing records, highlight mistreatment

When Reginald Burnett started working in a warehouse unloading trucks of goods destined for Wal-Mart, he said he was told he’d make at least $10 an hour. But he soon realized that figure hinged on unloading a truck in three hours. Depending on how many things are in a truck and how heavy and unwieldy they are, unloading a truck can take two days.

Burnett, 32, soon found himself working 12-hour days, seven days a week, and taking home only $90-100 a day – less than $9 an hour, not counting copious overtime to which he should have been entitled under the law. He said he wasn’t the only one who realized his Friday paycheck from the agency Reliable Staffing “didn’t add up.”

Burnett is among workers who think they are victims of wage theft by the New Lenox, Ill., staffing agency. Reliable Staffing workers have contacted the group Warehouse Workers for Justice, which is trying to shed light on alleged wage and hour violations, unhealthy working conditions, extensive use of temporary labor and other unsettling aspects of the massive warehouse industry in Chicago’s southwest suburbs.

Today Burnett and other former or current Reliable Staffing workers and their supporters are marching into the company demanding copies of their pay stubs and billing records, to highlight what many workers say is erratic, deceptive or non-existent recordkeeping and transparency by the agencies that hire workers to staff warehouses for major multinational companies like Wal-Mart.

“It was everything that goes to Wal-Mart, from BBQ grills to tables to different types of book folders,” said Burnett. “A lot of it was heavy.”

George Johnson is among the former Reliable Staffing workers who never got straight answers about how much he was being paid. He said he was promised $9.25 an hour, but he said he sometimes got as little as $15 for a full eight-hour day during his three months at the company, paid piecemeal for unloading trucks, splitting pay with one or two other workers unloading the same truck. He said he was also told to report to the warehouse at 7 a.m., but wouldn’t start working until 8:30 a.m. or 9 a.m., without being paid for the waiting time.

“It was all screwed up,” said Johnson, 41, who struggled to support eight kids on the meager wages. “You spent all these hours working, unloading these big trucks, one after another after another. For nothing.”

Warehouse Workers for Justice, a campaign launched several years ago by the United Electrical Radio and Machine Workers of America (UE), last year released the study Bad Jobs in Good Movement: Warehouse Work in Will County that showed:

63 percent of warehouse workers were temps and that majority were earning below the poverty line…and one in four warehouse workers needed public assistance and many workers needed a second job in order to make ends meet.

Both Johnson and Burnett were temporary workers, and Johnson since then worked another temporary warehouse job. Burnett has been collecting unemployment since being laid off after about seven months, when his contract ended.

“When they want that order, they’ll say ‘that truck is hot,’” he said. “There are people waiting on the order, they need to complete it right away to get their money, so they make you work harder. But they don’t share the money with you. They are making big money, I kid you not.”

Warehouse Workers for Justice organizers have been meeting with Illinois state legislators to introduce legislation that would limit the number of temporary jobs in the industry, among other workers’ rights protections.
“People deserve permanent jobs,” said Tory Moore, a WWJ organizer who worked at the same warehouse for six years as a temp.

Burnett said he hopes more workers speak up about wage theft and other problems. He said many of the people working for Reliable Staffing have criminal records, something he thinks the company banked on.

“The job is so God-damned hard, most people they hire have felonies, they know most people won’t hire someone with a felony, so they know he’ll put up with it because he’ll have a hard time doing anything else,” Burnett said.

They are trying to prove to society that they’re capable of handling this kind of thing. Making their own money feels good, especially someone who came from the street, who never had anything in their lifetime. Now they don’t have to look over their shoulder, over their back, look out for the police.

They’re going to hold on to that job as long as they can. The people know they’re being cheated, but they don’t want to speak up because if you speak up, you lose your job.

About the Author: Kari Lydersen is an In These Times contributing editor, is a Chicago-based journalist whose works has appeared in The New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Revolt on Goose Island. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

This post originally appeared in http://www.inthesetimes.com on February 21, 2011.