Attorneys representing workers in Walmart warehouses today announced the filing of a motion to add the retail giant as a defendant in an ongoing federal wage theft lawsuit. If successful, the motion would advance efforts by organized labor to punish Walmart for alleged rampant abuses, and to establish its responsibility for the actions of its contractors and subcontractors in California and elsewhere.
Lawyers say the wage theft class action could involve as many as 1,800 workers in Southern California’s Inland Empire (its class action status has been provisionally certified for a smaller group). As I’ve reported for Salon, Mira Loma, California, workers from three warehouses brought charges to the California Department of Labor Standards enforcement last year. Workers say that they exclusively move goods for Walmart; each of the subcontractors that hired them was employed by the Walmart contractor Schneider Logistics.
On a media conference call with the attorneys, Warehouse worker David Acosta said he worked unpaid overtime, and sometimes worked up to sixteen hours a day with only a single break. “There were years without respect,” Acosta said in Spanish. “Our dignity was thrown to the floors.”
According to workers, one of those subcontractors, Rogers-Premier, responded to a worker-prompted state investigation by moving to lay off all of its employees in one of the warehouses. With support from Warehouse Workers United, a project of the union federation Change to Win, workers sought, and won, a rare judicial restraining order enjoining the layoffs. That federal district court injunction, and two others against the warehouse companies, are currently on appeal.
The court also found Schneider to be a “joint employer” with responsibility for working conditions, allowing it to be named as a defendant in a suit filed in October 2011 alleging rampant wage theft and retaliation. In July, a Change to Win attorney called this “a first step in breaking down this fissured industry.” A June report from the National Employment Law Project found that Walmart “is intimately involved in the daily operations of the Schneider operations, which solely move Walmart goods”; Walmart responded in July that it “does not have any direct contract with Schneider’s subcontractors.”
“Our breaks and rest periods weren’t being respected…” warehouse worker Jose Tejada told reporters in February. “If you answered, or complained, you would get fired for no reason. Or sometimes as punishment…you would work both the night and the day shift, and on top of that they would only pay you for the morning shift.”
WWU has been hoping for months that the discovery phase of the lawsuit would yield enough evidence to also have Walmart itself named as a defendant. Attorneys say that’s now happened. The motion will be heard in court on January 7.
Attorneys argue for including Walmart as a defendant based on six legal theories, including that Walmart controls the means of production and determines the terms and conditions of employment; that contractors are acting as Walmart’s agent; that Walmart is a co-conspirator; that Walmart has been negligent; and that Walmart has committed unfair business practices. Attorneys said on the conference call that Walmart keeps a full-time staff person in an on-site office and gives its contractor directives ranging from when to reduce staffing on a particular truck to when ink needs to be refilled in a printer.
Attorney Michael Rubin told reporters that Schneider was ordered yesterday by a judge to pay nearly $100,000 in legal fees due to “evidence of massive discovery violations,” including “documents that were destroyed.”
Reached by e-mail, Walmart spokesperson Dan Fogleman said, “We disagree with the plantiffs’ perception as stated in their filing. Walmart is Schneider’s customer. We have a set of business needs that we pay them to meet just like any company might hire an accounting firm to do taxes or an advertising firm to help launch a new product. While we have a set of quality standards that must be met, the third party service providers we utilize are responsible for running their day-to-day business. They manage their people completely independent of us.”
In response, attorney Michael Rubin told The Nation, “Walmart contractor-run warehouses operate in the identical manner as Walmart’s Walmart-run warehouses…. Walmart owns all the equipment and all the supplies being used. When you have an integrated stream like that, where the worker is integral to the operation of the employer, then under both California law and federal law, that company is deemed the joint employer and is liable for all of the violations.”
Rubin added, “It’s not as though they’re outsourcing it. They’re there. They have offices there. The employees of its contractors have wal-mart.com e-mail accounts…this is not a typical arms-length customer-accountant or customer-tax lawyer relationship. These are Walmart’s employees.”
“I know Walmart is responsible for all of this, even though they say they have nothing to do with us…,” said Acosta. “We need Walmart to take responsibility…They have the power to do it, because they’re the ones on top of the subcontracting.”
Check out our latest editorial on what the recent Walmart rebellions say about our broken labor laws.