He beat out some tough competition, but Rob Walton, chairman of Wal-Mart’s board of directors, is the top vote getter in the 11th annual Jobs with Justice (JWJ) Scrooge of the Year election.

Walton deemed a “billionaire bully” by Brave New Films, has an estimated net worth around $21 billion, JWJ reports. As a family, the Waltons control 49 percent of Wal-Mart and are, says JWJ, the richest family in the United States, with a combined net worth is $93 billion. The Walton Family has as much wealth as the bottom 30 percent of American families combined—more than 35 million families.

The family’s dividends from their Wal-Mart stock alone are more than $2 billion a year. Just using their dividends, they could ensure that a million Wal-Mart employees make at least $12 an hour instead of the current average of $8.81 an hour.

Just last month Wal-Mart, under Rob’s leadership, slashed health care coverage for hundreds of thousands of Wal-Mart employees and their families—right before the holidays. What a scrooge!

Click here to learn more about the runners up, the American Legislative Exchange Council, Publix supermarkets and Eddie Hull University of Massachusetts director of housing and residential life.

This blog originally appeared in AFL-CIO Now blog on December 22, 2011. Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journal and managing editor of the Seafarers Log. He came to the AFL-CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety. He carried union cards from the Oil, Chemical and Atomic Workers, American Flint Glass Workers and Teamsters for jobs in a chemical plant, a mining equipment manufacturing plant and a warehouse. He’s also worked as roadie for a small-time country-rock band, sold blood plasma, and played an occasional game of poker to help pay the rent. You may have seen him at one of several hundred Grateful Dead shows. He was the one with longhair and the tie-dye. Still has the shirts, lost the hair.

Last June, the Supreme Court tossed out a class action lawsuit brought by over a million Walmart employees alleging that the company systematically discriminates against women. The Court did not allow the women to try to prove that such discrimination exists, instead holding that the women did not have enough in common with each other to come together in one lawsuit. Yesterday, the women responded to this setback with the first of several cases breaking them down into smaller groups:

The lawyers promised an “armada” of other lawsuits in the next six months making discrimination claims in other regions of the country, as opposed to nationwide. “The case we are starting today is the first of many,” said Brad Seligman, one of the lead plaintiff lawyers. He added that the new lawsuits are “what we like to call Wal-Mart 2.0.” [...]

The lawsuit filed Thursday in the United States District Court for the Northern District of California contends that Wal-Mart’s discriminatory practices on pay and job promotion affected more than 90,000 women currently or formerly employed at Wal-Mart and Sam’s Club stores in four regions in California and neighboring states.

This tactic could ultimately prove successful, and it is possible that many hundreds of thousands of women could receive long overdue justice by joining together in somewhat smaller groups. Even if they win, however, the sad truth is that this victory could probably never be repeated thanks to an enormous gift the Supreme Court gave powerful corporations last April.

When the Supreme Court’s Wal-Mart case was handed down, ThinkProgress called it only “the second worst class action case this Supreme Court term.” The worst decision — indeed, one of the very worst Supreme Court decisions in the last decade — was AT&T Mobility v. Concepcion. Concepcion built off a long line of misguided decisions allowing corporations to force their consumers and workers to sign away their right to sue the company in a real court and shunt any disputes into a secretive, privatized arbitration system that overwhelming favors corporate parties. Under Concepcion, corporations can not only take away your right to hold them accountable in a real court, they can also take away your right to join together with other victims of the corporation’s lawbreaking to form a class action lawsuit.

Thanks to this deeply erroneous decision, Walmart can now force each and every one of their workers to sign away their rights or they are fired. And without the ability to bring class actions in the future, many of these workers will be completely powerless against their megacorporate employer.

The class action one of the very few tools enabling vulnerable Americans to stand up to a wealthy and influential corporation. If a major corporation cheats a thousand of its workers out of a thousand dollars each, for example, very few of them will decide it is worth the hassle and expense of a major lawsuit and virtually no lawyer will be willing to take such a low dollar case on a contingency fee basis — meaning that the plaintiffs will have to pay more for legal counsel than they are likely to win in the end. If these thousand workers are able to join together into a class action, however, their million dollar claim suddenly becomes very attractive to top litigators — and the hassle of litigation will be virtually non-existent for most of the plaintiffs. Thanks to Concepcion, however, that is probably no longer an option.

Concepcion was an earthquake, and it shook one of the foundations of our civil justice system to the ground. Walmart may still be held accountable for its past actions, but it is doubtful that any of its workers will ever be able to join a class action against them again.

This blog originally appeared in ThinkProgress on October 28, 2011. Reprinted with permission.

About the Author: Ian Millhiser is a Policy Analyst at the Center for American Progress Action Fund and a blogger on judicial and constitutional issues for ThinkProgress.org. He received a B.A. in Philosophy from Kenyon College and a J.D., magna cum laude, from Duke University. Ian clerked for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit, and has worked as an attorney with the National Senior Citizens Law Center’s Federal Rights Project, as Assistant Director for Communications with the American Constitution Society, and as a Teach For America teacher in the Mississippi Delta. His writings have appeared in a diversity of legal and mainstream publications, including the Guardian, the American Prospect and the Duke Law Journal; and he has been a guest on CNN, MSNBC, Al Jazeera English, Fox Business and many radio shows.

Last week, Wal-Mart announced the latest component of its relatively successful campaign to shift its image from corporate villain to socially responsible role model.

The company promised that it would double its business with women-owned contractors and suppliers in the U.S. and internationally, and educate and train hundreds of thousands of women through its nonprofit Wal-Mart Foundation. That means the company will buy products from more women-owned factories and farms and hire more women to construct its stores.

The move comes after Wal-Mart was up against the largest sex-discrimination class-action lawsuit in history, until the Supreme Court threw it out this summer.

Most labor and social justice advocates are glad to see any corporation change its practices in the face of social and economic pressure, so Wal-Mart’s recent announcement and its other recent efforts, such as contracting with minority suppliers, adopting sustainable environmental practices and increasing diversity and fairness in its stores, can be seen as small victories for campaigns that expose Wal-Mart’s practices.

But many labor and watchdog groups are still skeptical of the mega-corporation’s sincerity and the larger significance of its corporate responsibility initiatives, and they are calling on the company to continue examining and reforming its practices in a big way.

Jennifer Stapleton is spokesperson for Making Change at Wal-Mart, a campaign of the United Food and Commercial Workers international union. She said in a statement last week:

Wal-Mart’s latest PR gambit is trying to cover up decades of unjust treatment of women, but women know better. Wal-Mart causes systematic economic harm to women in the U.S. and around the world, and that is precisely why Wal-Mart is trying to sell us on a new image. Wal-Mart keeps millions of women in the U.S. and around the world in poverty, fails to protect women from unacceptable sexual and other forms of workplace harassment and works many women to the bone in sweatshop conditions around the globe. And, according to the women in the Dukes v. Wal-Mart gender discrimination law suit, Wal-Mart pays women less than men.

In May and June, a group called Organization United for Respect at Wal-Mart (OUR Wal-Mart) surveyed 501 Wal-Mart associates. On a number of questions about pay, fairness and opportunity, women were consistently less satisfied and felt treated less fairly than male workers, by margins of about 10 to 25 percent, depending on the question.

More than half the workers answered that conditions were “poor” or “fair” in terms of having dependable schedules, opportunities for advancement and training, just procedures for discipline and termination and other measures.

These answers imply a mediocre to substandard employment situation–not overwhelming dissatisfaction, but not as positive a result as one might expect from a company that has gone into overdrive to improve its image. Three-quarters of workers also said they thought under-staffing is a serious problem that has resulted in customer dissatisfaction and/or messy stores.

And given the lawsuit and the company’s recent announcement, the group stressed that the disparity between men’s and women’s answers is significant. A release quoted Lancaster, Calif.-Wal-Mart worker Maggie Van Ness saying:

If what’s going on at Wal-Mart happened at a small company, it would be bad enough. But because Wal-Mart’s the nation’s largest employer and sets standards for our communities and other companies, this is a full-scale epidemic. The data show widespread problems that are especially bad for women, who need these jobs.

Wal-Mart is the largest private employer of women in the U.S., with 808,000 women making up 65 percent of its domestic workforce as of 2001, according to a paper by Making Change at Wal-Mart. Between 1996 and 2001, women working at Wal-Mart earned on average $5,200 less per year than men, and were also much less likely to have salaried, upper-level management positions, according to a 2003 report. It also noted women in salaried positions earned $14,000 less per year than their male counterparts.

Last year, the Equal Employment Opportunity Commission negotiated an $11.7 million settlement with the company over complaints that at a Kentucky distribution facility, women were systematically discriminated against for certain positions that usually went to young males.

In light of Wal-Mart’s recent promise to increase business with women, Wal-Mart critics also point to the story of Margaret Garner, an African-American construction-business owner whom Wal-Mart had celebrated for her lead role in building its controversial first Chicago store, on the city’s impoverished West Side. Four years after it opened, Wal-Mart has billed that store as a success and planned dozens more stores for Chicago. But Garner’s firm declared bankruptcy last year, driven by $11.9 million in debt from cost over-runs on the Wal-Mart, as reported by Crain’s Chicago Business. The Crain’s investigation explains that Garner’s firm, which received incentives under city programs for minority contractors, sent most of the actual work to firms owned by white males. Garner’s firm sunk into debt when it couldn’t pay those companies as promised.

Also, a University of Illinois at Chicago and Loyola University study alleges that the West Side Wal-Mart drove other local companies out of business, a long-standing complaint which Wal-Mart says is not borne out by facts.

But according to Making Change at Wal-Mart,

For decades, Wal-Mart has shown that when it “invests” in a community, that community can expect lost jobs, depressed wages, bankrupt local business, and lowering of labor standards to follow quickly. Women in the U.S. and around the world would be far better served if Wal-Mart would improve its labor practices, raise its wages, and use its power to stand up for human rights instead of undermining them through its day-to-day business practices.

This post originally appeared in Working in These Times on September 19, 2011. Reprinted with permission.

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.

It’s no secret that the nation’s employees did not fare well in the two most highly-publicized Supreme Court rulings affecting them this term, Wal-Mart v. Dukes and AT&T v. Concepcion.  In both cases, the ability of plaintiffs to get relief as a class in the courts was curtailed.

The Wal-Mart holding will make it especially difficult for employees in differing job classifications to team together to win a class action discrimination lawsuit.  Meanwhile, the AT&T case arose not from the employment realm at all, but rather from a seemingly mundane consumer dispute.

A California couple, Victor and Liza Concepcion, claimed they had unknowingly signed away their right to initiate a class action against AT&T as part of a form agreement.  They were upset after being charged $300 for a cell phone that had been touted as free.  The Concepions argued that the arbitration clause they signed should be struck down as unconscionable because its classwide ban would leave them and other similarly-situated consumers without representation.

But just as in Wal-Mart v. Dukes, the AT&T case broke down along strict ideological lines with the five conservative justices voting to uphold the classwide ban in another 5-4 opinion.  Writing for the Court, Justice Antonin Scalia asserted that courts must place arbitration agreements on equal footing with other contracts and enforce them according to their terms.  “Requiring the availability of classwide arbitration,” he said, “creates a scheme which is inconsistent with the Federal Arbitration Act.”

While the underlying facts arose from some unhappy consumers, it does not take much of a leap to see how the holding’s language could affect employees confronted with similar arbitration agreements by their employers.  No less an authority than veteran San Francisco plaintiff’s employment attorney Cliff Palefsky has said of AT&T v. Concepcion, “There’s a potential for mischief.” He adds that the ruling is sure to extend to arbitration clauses in the employment realm.

When the Wal-Mart and AT&T opinions are coupled together, the picture at the Supreme Court from this past term may not be a pretty one for employees.  But for those willing to dig a little deeper, the term actually reveals gains for workers when it comes to workplace anti-retaliation protections.

In a trio of cases, the justices ruled decisively for employees who alleged they were the victims of retaliation under Title VII of the Civil Rights Act, the Fair Labor Standards Act and the Uniformed Services Employment and Reemployment Rights Act (USERRA).  In two of the disputes, the decisions were unanimous while the third resulted in a 6-2 victory for the plaintiff employee.

The civil rights case, Thompson v. North American Stainless, involved a Kentucky man who said he was fired from his job because his fiancé had filed an EEO complaint against their employer.  While the Sixth Circuit Court of Appeals had held there is no cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity themselves, the Supreme Court soundly rejected that ruling.

In an opinion that was authored by Justice Scalia, the Court called it “obvious” that retaliating against an employee by firing her fiancé could dissuade that person from filing an EEO complaint or engaging in other legally-protected acts.

In another unanimous pro-employee outcome, Staub v. Proctor Hospital, the High Court held that employers may be liable for discrimination even when the decisionmaker herself harbored no discriminatory animus toward the plaintiff.  That marked yet another Justice Scalia opinion.

The case involved the claims of a military reservist who purportedly had been terminated from his job at an Illinois hospital for insubordination.  The plaintiff Vincent Staub said, however, that the real reason was because his immediate supervisor and another supervisor had an anti-military bias.  He claimed both were upset because of time he had missed while serving on active duty in Iraq.

The actual decisionmaker, though, was an HR vice president who had acted with no apparent bias.  Nonetheless, the Supreme Court found that lack of hostility to be irrelevant.  That’s because the supervisor who allegedly frowned on Staub’s military obligations was the same one who wrote up the report that the HR vice president relied upon in making her decision.

Meanwhile, another employee prevailed at the nation’s highest court in the Fair Labor Standards Act retaliation case of Kasten v. Saint-Gobain.  The justices ruled that the FLSA protected a Wisconsin factory worker’s complaints about the placement of time clocks even though he never made them in writing.

The Court found that oral complaints to company officials were enough.  In reaching their ruling, the justices reasoned that it was unlikely Congress would have wanted to limit the labor law’s effectiveness by excluding those who would find it hard to reduce their complaints to writing, namely illiterate, less educated or overworked employees.  It’s an opinion that is sure to aid the rights of blue-collar workers.

So what can we draw from these results?  The Supreme Court has a well-earned a reputation as a pro-business court.  And these three opinions hardly represent a seismic shift.  But while none of them are on the scale of the Wal-Mart or AT&T rulings, they ARE significant.

In all three of those retaliation cases, the employees had lost at the federal appellate level.  The fact that the Supreme Court saw fit to hear all three of those disputes and to issue one-sided reversals each time is a sign that the justices are willing to take a strong stand against retaliation in the workplace, at least when individual employees are affected rather than a large class.

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, 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.

As legions of Walmart workers shuffled into work on Monday, the Supreme Court smacked down a major class-action lawsuit that might potentially have shifted the legal landscape on women’s rights in the workplace.

The gender-discrimination lawsuit against the world’s most notorious retail giant had been pending for years. Now the Court’s majority opinion has declared that, in light of “Walmart’s size and geographical scope,” the plaintiffs could not provide “significant proof that Wal-Mart operated under a general policy of discrimination. That is entirely absent here.”

And with that, Justice Antonin Scalia rendered perhaps hundreds of thousands of working women absent from the discussion on gender discrimination in today’s sink-or-swim economy. The split in the most significant part of the judgment, the class-action aspect, was five to four, putting all the female justices in the minority. The division ironically suggested a lack of self-reflection on how structural gender discrimination works in powerful institutions.

The core of the decision is not about whether Walmart did indeed discriminate. There’s ample evidence of that, though, including records of pay scales skewed against women, unequal hiring patterns in managerial positions, and expert testimony on the social implications of these trends. The Court’s opinion doesn’t examine that, but rather whether America’s discount paradise can be held legally accountable for systematic mistreatment of female workers.

The ruling was a high-five moment for the right, as it allows Wal-Mart executives to skirt a gargantuan liability. Going forward, the decision will in many circumstances leave the women on their own in seeking legal redress, since their claims can’t be in a mega-suit. Although Wal-Mart’s main defense is that it’s not responsible for lower managers who violate non-discrimination rules, the plaintiffs alleged a crime of omission: that the corporation failed in its responsibility to prevent bias against women as a matter of policy. A statment from the case sums up their position:

The discrimination to which they have been subjected is common to all Walmart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decision-making of each one of Walmart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.

By enabling discrimination, the suit contended, Walmart should be held liable all the way through the command chain, from the exec in the boardroom down to the greeter at the store entryway. That’s where lead plaintiff Betty Dukes got stuck. She was demoted to greeter after working higher positions at a Pittsburgh, California store, she alleged, primarily because management retaliated against her for formally complaining about her treatment. Male colleagues who behaved similarly, Dukes says, never faced the same discipline.

There’s also Edith Arana. The former employee, who like Dukes is a black woman, claimed that after five years of working at Walmart in Duarte, California, she sought management training and was told, “there’s no place in management for people like you.”

After leaving the job, Arana told PBS NewsHour in 2004:

I have never seen a man that has, like, struggled, done everything he was supposed to do, worked overtime, sacrificed his family time, come in on days that he wasn’t supposed to—I’ve never seen a man that would go through that and not get what he was promised. But the women, they do it over and over and over again.

The setback in this suit doesn’t mean women can’t go after Walmart for discriminatory practices. We may in the near future see more targeted, smaller-scale litigation (including suits related to racial discrimination)—or perhaps even more grassroots political pressure campaigns on this issue.

But the decision will no doubt discourage legal action by giving many women no choice but to go through the arduous process of filing suit on an individual, not group basis. Meanwhile, Walmart will continue to expand its influence on the workforce gender divide by employing more female employees, and subjecting more women to the indignities of discrimination, gradually eclipsing workers’ civil rights in the shadow of the Big Box industry.

Following the ruling, Debra L. Ness, president of the National Partnership for Women and Families warned in a statement that the case would open the door to more discrimination with impunity in the corporate world:

Today’s ruling sets a dangerous precedent that will make it easier for employers – especially large ones – to discriminate against their employees while, at the same time, making it harder for workers to come together to challenge it. This creation of a potential ‘large company’ exception to our civil rights laws is a perversion of justice.

In other words, the bigger the company, the larger the workforce, the greater the potential for discrimination, the deeper the economic injustice throughout our communities… and the smaller a worker’s chances of getting her day in court.

This article originally appeared on the Working In These Times blog on June 21, 2011. Reprinted with permission.

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.

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.

Wal-Mart is the largest private-sector employer in the United States. It employs more than 1.4 million workers here, but pays them an estimated 12 percent less than average retail workers in the country. Many argue that, while unfortunate, such low wages help poor families since by allowing them to purchase goods cheaply.

That argument was most famously articulated by the current National Economic Council Deputy Director, who before she joined the White House published a paper in 2005 titled “Wal-Mart A Progressive Success Story.” It argued that Wal-Mart could not raise wages without raising prices, which would hurt poor and low income communities

However a study released on Monday by University of California, Berkeley’s Center for Labor Research and Education found that increasing wages to $12 per hour would cost Wal-Mart $3.2 billion if applied to all workers across the United States. That amounts to about 1 percent of the company’s annual sales of $305 billion. Even if Wal-Mart were to pass on the total cost of the wage increase to consumers, researchers estimate that shoppers would pay about $12.50 more per year – or 46 cents per shopping trip – to cover the cost of the pay raise for Wal-Mart workers.

UC Berkley researcher Ken Jacobs doubts that all the costs of a wage increase would be passed on to consumers in the form of increased prices, because increasing prices would lower the amount of goods Wal-Mart would sell.

A worker collects shopping carts outside a Wal-Mart store in Mount Prospect, Ill. (Photo by Tim Boyle/Getty Images)

“Wal-Mart is the largest private employer in this country and it’s dragging down wage job standards for retail and grocery workers. It can clearly afford to pay workers a well wage” says Jennifer Stapleton, assistant director of Making Change at Wal-Mart, which is run by the United Food and Commercial Workers union.

“Even if the company passes on that cost to customers, it would be the same cost as a pack of gum. Consumers would be open to that, instead of feeling guilty for shopping at Wal-Mart.”

Indeed, such a wage increase could really help workers. A $12 an hour wage would mean average annual pay increases of $3,250 to $6,500 for workers making less than $9 an hour, and $1,675 to $2,930 for workers making between $9 and $12 an hour. 41 percent of the pay increase would go to workers in families with total incomes of 200 percent of the poverty line—less than $21,660 a year for a single worker and $44,100 a year for a family of four.

And the cost for the wage increase would not come out of the pocket of poor workers, but 72 percent of the costs of this substantial benefit would be borne by people making above 200 percent of the poverty line.

Despite statistical evidence saying that raising labor prices has very little effect on consumer prices, advocates of low wages claim wages must be keep low to keep consumers good cheap. We hear this same argument applied to free trade: Goods are cheaper from China and other low-wage countries because these countries pay workers a lower wage.

“Even for most manufacturing, the labor cost is a very small percentage in all but some of the most rudimentary manufacturing, like textiles. For things like steel high tech or most manufacturing that is heavily capital intensive the labor impact is minimal,” says Scott Paul, executive director of the Alliance for American Manufacturing, an alliance of businesses and organized labor. “Labor costs in China amount to less than 10% of overall cost, labor cost differential washed away by productivity in the United States.”

Paul points to other countries where workers make higher wages than Americans but have no trade deficit with the U.S. “Average factory compensation for a worker in the United is $32 dollars an hour. In Germany, the average factory worker makes $48 dollars an hour. Despite this, the United State has a $275 billion trade deficit, while Germany has balanced trade with China. How is it that when our labor costs are $16 an hour cheaper than Germany?“ asks Paul. “It has everything to do with our trade policies, infrastructure policies, tax policies and investment in skills, and very little if anything to do with the cost of labor.”

The new attacks on public-sector workers’ salaries and benefits in Wisconsin and other states have triggered a debate about whether labor costs place too much of a burden on taxpayers. Hopefully this debate over paying workers good wages won’t spill into tired old debates about free trade.

About the Author: Mike Elk is a third-generation union organizer who has worked for the United Electrical, Radio, and Machine Workers, the Campaign for America’s Future, and the Obama-Biden campaign. Based in Washington D.C., he has appeared as a commentator on CNN, Fox News, and NPR, and writes frequently for In These Times as well as Alternet, The Nation, The Atlantic and The American Prospect.

This blog originally appeared in These Times on April 19, 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.

CHICAGO—After three months of working in a Wal-Mart warehouse in the Chicago suburbs last fall, Robert Hines was fed up with getting paid much less than he had been promised by the company Reliable Staffing, which hired temporary workers to unload containers.

But the final straw came when he wasn’t paid at all for seven 10-12 hour days he’d worked shortly before Thanksgiving, he says. His calls to the agency weren’t returned, and when he went in person to demand his money, he said a manager claimed he and his work partner, Leo Williamson, had never worked those days at all.

So Hines and Williamson are among eight named plaintiffs in a class action lawsuit filed today in federal court charging Reliable Staffing, its owner Daniel Gallagher and Schneider Logistics, which runs the Wal-Mart warehouse in Elwood, Ill., with violating state and federal labor laws.

When former Reliable Staffing workers marched into the agency last Monday demanding pay and billing records (as is their right under the Illinois Day and Temporary Labor Services Act), they were not given any records and, they say, were greeted with hostility by Gallagher.

Deathrice Jimerson and Demetrie Collins allege they were cheated out of hundreds of dollars in wages at a Wal-Mart warehouse. (Photo by Kari Lydersen)

Under the Illinois day labor act, considered one of the nation’s strongest such laws, the workers have the right to see what Reliable Staffing billed Schneider for their work, and what it paid them. If the hours and/or piece rates reported to Schneider and reported to the workers themselves don’t add up, it could show Reliable Staffing was intentionally not paying workers for their labor.

The plaintiffs think that was standard practice at the company.

“The lady looked me in the face and said I have no recollection of you working,” said Hines, 37. “I got vulgar comments, a snazzy attitude from them. And I was breaking my back for peanuts, or to not even be paid at all.”

The lawsuit alleges violations of the aforementioned Illinois Day and Temporary Labor Services Act, along with the Fair Labor Standards Act, the Illinois Minimum Wage Law and the Illinois Wage Payment and Collection Act. Allegations include unpaid overtime, failure to pay state and federal minimum wage and failure to pay at least four hours’ wages when workers were called in to work, as mandated by the day labor services act.

The lawsuit says that plaintiffs who worked for Reliable Staffing from 2006 on were promised $10 an hour, plus a piece rate for unloading trucks, including a higher “premium” piece rate for heavier goods. It alleges they were not paid the piece rate as promised, and that in fact workers were often paid less than state and federal minimum wage along with not being paying overtime.

Hines said that at the rate promised, his paychecks for working often from 6 a.m. to 6 p.m. should have been at least $300 a week – not counting overtime, which he also should have been due. But he was usually paid $239.

The suit also alleges workers were not paid for mandatory waiting time, adding up to multiple hours per week. It says that when one defendant wrote his arrival time on a sign-in sheet, a supervisor actually tore the sheet up.

“Reliable Staffing actually did not keep track of people’s hours,” said attorney Chris Williams. “That’s illegal. Even if you are paying a piece rate, under federal law you need to show that adds up to at least minimum wage.”

And the suit alleges Reliable Staffing violated state laws by failing to provide workers with documentation of where and for which third party they would be working, the nature of the work and how much they would be paid. The suit basically alleges that workers were paid the $10 piece rate only – often divided between two or three workers, workers say – and then the employer simply made up the number of hours the worker supposedly worked by dividing the piece rate by 10.

“The check stub is a fiction—their check stub could show they worked 36 hours when they really worked 72 hours,” said Williams. That’s why, Williams said, it’s so important the workers are able to demand their billing records under the state day labor services act.

“The workers are supposed to be able to go into the office and get this information themselves,” Williams said. “But unfortunately the law isn’t working. That’s why we had to take this to federal court.”

The suit says:

In fact, Defendants Reliable and Gallagher provided Plaintiffs and similarly situated laborers with check stubs that contained false information, showing the final gross compensation to the laborer divided by $10.00, thereby showing a number of hours worked on the check stub that bears no relationship to the actual number of hours worked…

Rather than provide Plaintiffs and the Class with the actual hours worked, Defendants Reliable and Gallagher provided Plaintiffs and the Class with a fictional number of hours worked and a fictional pay rate as described in paragraph.

The lawsuit adds that failing to provide workers documentation of their employment terms makes it easier for employers to cheat workers, saying:

The Illinois legislature found that such at-risk workers are particularly vulnerable to abuse of their labor rights, including unpaid wages, failure to pay for all hours worked, minimum wage and overtime violations, and unlawful deduction from pay for meals, transportation, equipment and other items.

The workers’ want unpaid wages, going back up to three years. The lawsuit also asks for statutory damages on some counts, attorneys’ fees, and that the company be blocked from violating these laws in the future. The suit notes that under the day labor services act, third party companies like Schneider that hire staffing companies are liable and legally responsible for any unpaid wages by the staffing company.

Depending on how the law is interpreted, it’s possible Wal-Mart itself could be liable.

“Hopefully this lawsuit will trickle down and help not just us but other people,” said Hines. “Maybe they’ll wake up and see that they have to treat people fairly if they want to get more out of us. Now they’re sitting there high on the hog, eating nice food, while we’re on the dollar menu at McDonald’s.”

This blog originally was posted on http://www.inthesetimes.com/on February 28, 2011. Reprinted with Permission.

About the Author: Kari Lydersen, 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.