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Court to take up huge sex bias claim vs. Wal-Mart

March 27, 2011 Leave a comment

Court to take up huge sex bias claim vs. Wal-Mart

By MARK SHERMAN, Associated Press Mark Sherman, Associated Press 43 mins ago

WASHINGTON – Christine Kwapnoski hasn’t done too badly in nearly 25 years in the Wal-Mart family, making more than $60,000 a year in a job she enjoys most days.

But Kwapnoski says she faced obstacles at Wal-Mart-owned Sam’s Club stores in both Missouri and California: Men making more than women and getting promoted faster.

She never heard a supervisor tell a man, as she says one told her, to “doll up” or “blow the cobwebs off” her make-up.

Once she got over the fear that she might be fired, she joined what has turned into the largest job discrimination lawsuit ever.

The 46-year-old single mother of two is one of the named plaintiffs in a suit that will be argued at the Supreme Court on Tuesday. At stake is whether the suit can go forward as a class action that could involve 500,000 to 1.6 million women, according to varying estimates, and potentially could cost the world’s largest retailer billions of dollars.

But the case’s potential importance issue goes well beyond the Wal-Mart dispute, as evidenced by more than two dozen briefs filed by business interests on Wal-Mart’s side, and civil rights, consumer and union groups on the other.

The question is crucial to the viability of discrimination claims, which become powerful vehicles to force change when they are presented together, instead of individually. Class actions increase pressure on businesses to settle suits because of the cost of defending them and the potential for very large judgments.

Columbia University law professor John Coffee said that the high court could bring a virtual end to employment discrimination class actions filed under Title VII of the Civil Rights Act of 1964, depending on how it decides the Wal-Mart case.

“Litigation brought by individuals under Title VII is just too costly,” Coffee said. “It’s either class action or nothing.”

Illustrating the value of class actions, Brad Seligman, the California-based lawyer who conceived of and filed the suit 10 years ago, said the average salary for a woman at Wal-Mart was $13,000, about $1,100 more than the average for a man, when the case began. “That’s hugely significant if you’re making $13,000 a year, but not enough to hire a lawyer and bring a case.”

The company has fought the suit every step of the way, Seligman said, because it is the “biggest litigation threat Wal-Mart has ever faced.”

A trial judge and the federal appeals court in San Francisco, over a fierce dissent, said the suit could go forward.

But Wal-Mart wants the high court to stop the suit in its tracks. The company argues it includes too many women with too many different positions in its 3,400 stores across the country. Wal-Mart says its policies prohibit discrimination and that most management decisions are made at the store and regional levels, not at its Bentonville, Ark., headquarters.

Theodore J. Boutrous, Wal-Mart’s California-based lawyer, said there is no evidence that women are poorly treated at Wal-Mart. “The evidence is the contrary of that,” Boutrous said.

The company is not conceding that any woman has faced discrimination, but says that if any allegations are proven, they are isolated. “People will make errors,” said Gisel Ruiz, Wal-Mart’s executive vice president for people, as the company calls its human resources unit. “People are people.”

Ruiz paints a very different picture of the opportunities offered women at Wal-Mart. She joined the company straight from college in 1992. “In less than four years, I went from an assistant manager trainee to running my own store,” she said. “I’m one of thousands of women who have had a positive experience at Wal-Mart.”

Kwapnoski, who works at the Sam’s Club in Concord, Calif., is one of two women who continue to work at Wal-Mart while playing a prominent role in the suit. The other is Betty Dukes, a greeter at the Walmart in Pittsburg, Calif.

“It’s very hard for anyone to understand how difficult that is and what courage that is,” Seligman said of Kwapnoski and Dukes. “They’re Public Enemy No. 1 at Wal-Mart and they are known for their involvement in this lawsuit. Nevertheless, they get and up and go to work every day.”

Kwapnoski didn’t want to discuss any issues she faces at work as a result of the suit.

She said she has seen some changes at Wal-Mart since the suit was filed in 2001. The company now posts all its openings electronically. “It does give people a better idea of what’s out there, but they still can be very easily passed over.” she said. “But before you didn’t even know the position was open.”

The suit, citing what are now dated figures from 2001, contends that women are grossly underrepresented among managers, holding just 14 percent of store manager positions compared with more than 80 percent of lower-ranking supervisory jobs that are paid by the hour. Wal-Mart responds that women in its retail stores made up two-thirds of all employees and two-thirds of all managers in 2001.

Kwapnoski said she and a lot of women were promoted into management just after the suit was filed, although she has had only a couple of pay increases in the nine years since. She is the assistant manager in her store’s groceries and produce sections.

Now, she said, promotions are back to the way they were before, favoring men over women.

She said she’s hoping the long-running court fight will force Wal-Mart to recognize that, stories like Ruiz’s aside, women are not valued as much as men are and that her bosses will begin to “make sure that good men and good women are being promoted, not just men.”

___

Online:

Briefs in the case: http://tinyurl.com/4ckzfz5

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Erin Brockovich back in Hinkley testing water

March 9, 2011 Leave a comment

Erin Brockovich back in Hinkley testing water

By NOAKI SCHWARTZ, Associated Press Noaki Schwartz, Associated Press Wed Mar 9, 6:06 pm ET

HINKLEY, Calif. – At the end of “Erin Brockovich,” a housewife sick from toxic chromium weeps with joy as she’s handed her portion of a historic $333 million settlement between residents of this small desert town and the utility that poisoned their drinking water.

In real life, that woman is Roberta Walker. She still lives in Hinkley, using her share to buy a new home in what she thought would be a safe four-mile distance from the toxic plume of chromium.

Earlier this year, she and other residents learned that the pollution, which Pacific Gas & Electric was required to clean up, was once again moving and had seeped into their groundwater.

Now, Brockovich has returned to the town that made her famous and is once again rallying residents, sampling the water, and at a water board meeting on Wednesday, her associate is expected to announce that the contamination may be worse than the utility says.

For Walker and others involved in the original case, these developments are like stepping back in time and are a haunting reminder that a landmark lawsuit and a blockbuster movie are no guarantee of safety.

“We didn’t bring a giant to its knees, all we did was wake it up,” Walker said. “This is not happening again — I can’t believe it.”

Walker was instrumental in developing the original case that was filed in 1993.

The Hinkley housewife and mother of two grew suspicious after PG&E repeatedly offered to buy her house and agreed to bring her so much bottled water that she filled her entire pool with it.

Walker brought documentation of cancer-causing chromium contamination in her groundwater to a law firm, which passed the file to Brockovich. The two eventually worked on the case together, becoming close friends in the process.

While many of the more than 600 original Hinkley litigants moved away from the town after the 1996 settlement, Walker stayed. She preferred the remote desert landscape to a city skyline.

Now, Walker and Brockovich are struggling to understand how this could be happening all over again.

“When I first met Roberta back in 1991 and 1992, she said PG&E is buying property, handing out bottled water and my horse just died,” she said. “This year she called and said they’re buying property, handing out bottled water and my horse just died.

“Eerie doesn’t describe it,” she said. “It was out of body — it was like the 20 years never happened.”

In 2008, the plume of chromium began spreading. Despite efforts by PG&E to stem the problem, tests this year showed it was growing again. According to the utility and water board, the plume is two miles long and a mile wide.

The reported chromium levels are low enough not to violate drinking water standards but residents remain concerned.

Since January, Brockovich has been testing the water with Bob Bowcock of Integrated Resource Management.

They have taken as many as 180 water samples. Bowcock, the former utility director for several Los Angeles suburbs, said the tests reveal that the contaminated area is twice as big as the utility’s estimates.

Bowcock is expected to share some of these details at the Lahontan Regional Water Quality Control Board meeting.

At the meeting, Hinkley residents will also get an update on PG&E’s cleanup effort. Lauri Kemper, the board’s assistant executive officer, said they have asked to see the data, lab results and sampling procedures.

“We are always open to look at folks’ data,” she said.

One troubling discovery, Bowcock said, is that there is contamination well beyond the original plume boundaries.

He has a theory: Decades earlier, when pumping at nearby farms caused some residents’ well levels to fall, that water was unknowingly replaced with thousands of gallons of chromium laced water.

Bowcock also said they have found much higher pollution levels than expected. Some areas, he said, are showing levels that are 400 times higher than the recommended public health goal.

While the utility believes the contamination is affecting an estimated 100 households, he believes the number is closer to 250.

“I don’t think PG&E ever had their arms around the problem entirely,” said Bowcock, adding that he was stunned by the results.

PG&E said it has not seen Bowcock’s water testing results but remained committed to working with the community and the water district. The utility has been sending residents bottled water and has expressed interest in potentially buying affected homes.

“Our concern first and foremost is for the community of Hinkley,” PG&E spokesman Jeff Smith said.

Walker, whose real life has not turned out quite as triumphantly as the celluloid version that won Julia Roberts an Oscar, called the company’s concern “laughable.”

Her daughters were 7 and 8 when they got their settlement from PG&E in 1996. They both have fibromyalgia and have had hysterectomies. Walker and her husband also have various health problems and have both had tumors removed, she said.

The settlement money disappeared into lawyer’s fees and bad investments.

“Their main concern is for the community of Hinkley?” Walker said. “It’s not true. They’re just saying what you want to hear.”

Federal Law Regarding Lunch Breaks

December 21, 2010 1 comment

Federal Law Regarding Lunch Breaks

Introduction

One may feel numb or tired working continuously for long hours without having any breaks.  This will obviously reduce the productivity and efficiency of an employee.  Most of the employers may feel happy by seeing their employees working continuously without taking any breaks.  Is it allowed for an employee to take time off from his/her job?  Certainly yes!  A lunch or a meal break is an approved period of time under the federal law.  This Federal law, the FLSA (Fair Labor Standards Act), permit employees to eat or engage in permitted personal activities.

Legal Right of Employees during Work Hours

There is a federal rule that says a break has to be at least 20 minutes long to be a paid one.  Under federal rules only, employers do not need to give most employees lunch or other types of breaks at all.

Lunch and meal breaks are largely a function of state law, which means different states have different rules.  Some states not only require the employer to provide lunch and other breaks, but also imposes very specific penalties for failure to do so.  Understanding your legal obligations as an employer as well as your employees’ legal rights is key to running a successful business.

As an employer, there are two guiding pieces of legislation on employment hours that you should familiarize yourself with – the Fair Labor Standards Act (FLSA) and the Family Medical Leave Act (FMLA).  Both provide guidance for employers on the rules and regulations that govern employee rights and labor laws with regard to vacation and sick leave, meal and other breaks, as well as flex time.  According to a study, the amount of time people are taking for lunch breaks in the United States is shrinking, thereby making the term “lunch hour” a myth.  Some employers request the lunch to be taken at their work station or not offering lunch breaks at all.  Many employees are taking shorter lunch breaks in order to compete with other employees for a better position, and to show their productivity.

In some places, such as the state of California, meal breaks are legally mandated. Penalties can be severe for failing to adequately staff one’s business premises so that all employees can rotate through their mandatory meal and rest breaks.  For example, on April 16, 2007, the Supreme Court of California, in Murphy v. Kenneth Cole Productions, Inc. 40 Cal. 4th 1094 (2007), held that employers must allow their employees to take time off for lunch or meal breaks.  In Murphy, a former store manager sued Kenneth Cole, a small upscale retail clothing store, claiming violations of wage and hour law and asserting that he was improperly classified as an exempt employee.  After leaving his employment, Murphy filed a complaint with the labor commissioner.  The labor commissioner awarded Murphy unpaid overtime, interest and a waiting time penalty.  The employer appealed. On appeal, Murphy added a claim for unpaid meal and rest periods, pay stub violations and interest and attorney’s fees.  The trial court awarded Murphy unpaid overtime, payments for missed meal and rest periods and pay stub violations, waiting time penalties and pre-judgment interest plus attorney’s fees.  The court of appeal affirmed the lower court’s judgment that Murphy was a non-exempt employee and thus entitled to overtime.  The court of appeal reversed the judgment to the extent the trial court issued an award for missed meal and rest periods for pay stub violations as such claims were not raised before the labor commissioner.  In addition the court of appeal held that the additional payment for meal/rest period violations is a penalty not a wage, and therefore is subject to a one year statute of limitations.  The California Supreme Court, however reversed and held that the additional hour pay provided for in California Labor Code §226.7 constitutes a wage premium payment, which is subject to a three year statute of limitations, not a penalty.

The aftermath of this decision is that, employers now face additional liability when they fail to properly pay employees for not only wages, but also for not providing meal and rest periods as required under the wage hour orders.  One or two missed meal periods, and/or a missed meal period, provides for each one hour of additional pay.

Legal Right of Employers during Work Hours

Although employer’s rights are considered wide with regard to allowing lunch and meal breaks, still they cannot be held liable for actions arising during unpaid lunch or meal breaks on certain circumstances.  When employers allow at least 20 or 30 minutes as breaks for their employees they are free from their liabilities in two different ways.  Firstly, they won’t be penalized for disallowing unpaid breaks for their employees (which is a standard set in labor laws).  Secondly, employers will not be personally liable to pay compensatory benefits for the liabilities incurred by their employees during the course of unpaid lunch breaks. In EMB Contracting Corp., 2008 NYWCLR (LRP) LEXIS 29 (NYWCLR (LRP) 2008), a Workers’ Compensation Board panel affirmed the workers’ compensation law judge’s decision disallowing the claim of a roofer who was hit by a car while returning from his lunch break.  In EMB Contracting Corp., while an employee returning from his lunch break, the claimant was struck by a car and taken to the hospital.  The motor vehicle accident occurred approximately two blocks away from the work site.  In rejecting the claimant’s argument that the accident occurred in the course of his employment, the panel noted that although the employer paid for the half hour lunch break and told the claimant when he should take his break, the employer did not specify where the claimant should eat his lunch. The claimant submitted no evidence of special circumstances that would render the claim compensable, such as a direction on the part of the employer, performance of a duty during the lunch hour, or a lunch period at an odd time caused by something connected with the work.

Therefore, it was held by the court that during the lunch hours in the absence of special circumstances, such as a direction on the part of the employer, performance of some duty during the lunch hour, or a lunch period at an odd time caused by something connected with the work, an employee is not considered to be in the course of his employment when an accident occurs during his lunch hour.

Misuse of lunch breaks by employees will force their employers to terminate their employment.  Moreover, in Grusendorf v. City of Oklahoma City, 816 F.2d 5390 (1987), after signing employment agreement to refrain from smoking during first year of employment, a firefighter was terminated for drawing three puffs on unpaid lunch break after “a particularly stressful day” during the first year of his employment.  Firefighter brought suit based on violation of right to privacy and liberty.  Therefore the United States court of appeals for the federal circuit Court held that, although the court ruled in favor of the employer, the court based its reasoning on the employer’s status as a state agency and applied only a rational scrutiny standard to the employer’s no-smoking policy.  This reasoning may not apply to private employers in part because the 10th Circuit indicated that there is protected liberty interest within the 14th Amendment that protects the right of employees to smoke during non-working hours. Grusendorf, 816 F.2d at 543.

In addition, the Tennessee Supreme Court in Wait v. Travelers Indem. Co., 240 S.W.3d 220 (Tenn. 2007), held that injuries sustained during an employee’s lunch break were compensable under the state’s workers’ compensation act.

Employees are not permitted to consume alcohol during their working hours which includes lunch breaks or rest breaks.

Work Break and Meal State Laws

The 22 states listed below have laws that include some sort of provisions for work breaks. Of the 22, only 19 specifically require a rest or meal break for adults, while only 7 specifically require a rest break in addition to a meal break for adults.

California
Colorado
Connecticut
Delaware
Illinois
Kentucky
Maine
Massachusetts
Minnesota
Nebraska
Nevada
New Hampshire
New York
New Jersey
North Dakota
Oregon
Rhode Island
Tennessee
Vermont
Washington
West Virginia
Wisconsin

But there’s still room for hope for lunch breaks in different states. Many states have passed laws regarding lunch break requirements. If you work in one of those states, your employer has to make sure that he complies with the state regulations.

Here is a summary of the individual state lunch labor laws. Note that not all industries are required to comply with these regulations in each state.

California – 1/2 hour after 5 hours worked, unless shift is only 6 hours

Colorado – 1/2 hour after 5 hours worked, unless shift is only 6 hours

Connecticut – if shift is 7.5 hours, 1/2 hour lunch after first 2 hours but before last 2 hours

Delaware – if shift is 7.5 hours, 1/2 hour lunch after first 2 hours but before last 2 hours

Illinois – required for hotel room attendants only

Kentucky – reasonable meal period between 3rd and 5th hour of shift

Maine – 1/2 hour after 6 consecutive hours

Massachusetts – 1/2 hour, if work is more than 6 hours

Minnesota – reasonable period, if shift is 8+ consecutive hours

Nebraska – 1/2 hour, off premises, at suitable lunch time

Nevada – 1/2 hour, if work is 8 consecutive hours

New Hampshire – 1/2 hour, after 5 consecutive hours – unless employee can eat while working

New York – 1/2 hour, if shift is more than 6 hours

North Dakota – 1/2 hour, if work is more than 5 hours

Oregon – 1/2 hour

Rhode Island – 20 minutes for 6 hour shift; 30 minutes for 8 hour shift

Tennessee – 1/2 hour, if shift is 6 hours

Washington – 1/2 hour, for 5 hour shift

West Virginia – 20 minutes, if work is more than 6 consecutive hours

Wisconsin- ½ hour after 6 consecutive hours’ work

New Mexico-  ½ hour

Guam- ½ hour, after 5 hours, except when workday will be completed in 6 hours or less and there is mutual employer/employee consent to waive meal period. Time worked is not considered unless nature of work prevents relief from duty.

Puerto Rico- 1 hour, after end of 3rd but before beginning of 6th consecutive hour worked. Double-time pay required for work during meal hour or fraction thereof.

If you have questions about your individual state, you should contact your state’s department of labor.

If your state isn’t listed, it means that there is no state law that specifically addresses work breaks or meals.

Even if your state doesn’t have a law that specifically addresses work breaks or meals, it might have related regulations or guidelines that do.  Alternately or additionally, your municipality might have a work break law or related orders, regulations or guidelines. To find out, start by contacting the relevant state labor department.

Employers may grant more work breaks or those of longer duration than state or municipal laws require, but not fewer or of shorter duration.

In states and municipalities where there are no laws or related regulations or guidelines with work break or meal provisions, under the FLSA work break and meal periods are a matter of voluntary agreement between employers and employees or employers and unions.

If your employer is violating work break or meal provisions in state laws or the FLSA, the relevant state labor department might help you to right the wrong.

Payment for Break and Meal Periods: Under 29 CFR 785.18 (Code of Federal Regulations) breaks of five to twenty minutes must be paid by the employer while, for a meal period to be unpaid, has to be at least 30 minutes uninterrupted by work. Note again, however, that federal law does not mandate breaks or meal periods.

Conclusion

If you are human, you have to eat.  If you have a job, you will probably work several hours during the day, most likely across the normal lunch time.  Thus, you probably wonder about lunch labor laws.

Hourly workers are most concerned about the law regarding their lunch breaks, but a recent study found that 90% of salaried workers held an hourly job at one time in their life.  The Fair Labor Standards Act (FLSA) does not require that meal or rest breaks be given. Short breaks (five to 20 minutes), however, which are given to employees as a matter of company policy, are generally considered to be compensable and to count toward the 40-hour workweek.  That policy must be clear and specific on taking breaks, and employees are not entitled to extend these breaks and receive compensation without prior authorization. Companies that offer short breaks as a matter of policy should be clear and specific about time and frequency, and must then count that time as part of the regular workday.

Those states which do not have any laws regarding breaks or meal periods, then those benefits are a matter of agreement between the employer and the employee.  Failing to adhere to state laws concerning breaks can be costly.  Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 922 A.2d 710, 2007 LEXIS 599 (N.J. 2007).  In Wal-Mart, the subject of the issue was a several multimillion dollar lawsuits for failing to give workers mandated breaks and for forcing workers to work off the clock. If a lunch break is considered compensable because the employee is not completely relieved of duties, the extra time worked may be compensable as overtime under federal law.  Furthermore, the New Jersey Supreme Court, in Wal-Mart, permitted two former employees of Wal Mart to proceed with a state wide class action on behalf of some 72,000 employees in which the class representative allege that they were denied required rest and meal breaks, and were forced to work “off the clock”.