class action

Eight years ago, the Supreme Court ruled in Wal-Mart Stores Inc. v. Dukes that a large group of more than 1.5 million women could not pursue their workplace gender discrimination claims against the retailer as a class. Since then, the women and Walmart have picked up the pieces in several smaller ongoing suits around the country, and the retailer is still fighting to break down groups into individual cases.  

The Walmart cases reflect a broader conflict playing out in court, where companies have steadily fought group actions by trying to whittle them down.

Workers often pursue claims of discrimination and wage and overtime issues by banding together, which they argue helps them find attorneys to represent them, inquire into the broader impact of workplace policies and avoid being singled out for retaliation.

But companies have long viewed the size and cost such group efforts as an existential threat.

Workplace class-action settlements alone can be forbiddingly large, they argue, let alone the legal fees. The law firm Seyfarth Shaw LLP, which represents companies in employment disputes, estimates that the top workplace class-action settlements in 2018 amounted to some $1.32 billion, and about double that in 2017, according to the firm’s annual workplace class-action report. Companies are using a variety of legal strategies to dismantle large groups against them in court.  

“Employers think that breaking up a class action will save them a lot of money,” said Michael Selmi, a professor at Arizona State University College of Law who has studied employment discrimination class actions. “And that if they break it up, the individuals will go away, and that will also save them money.”   

The Dukes spin-off cases against Walmart aren’t class actions, but the retailer seems to be applying a similar logic. Walmart has asked a Florida federal court to break apart groups with dozens of current and former Walmart employees who held positions ranging from sales associate to store manager. 

“Each individual plaintiff must prove that she was discriminated against and that Walmart’s reasons for its business decisions, as they pertain to her, were not legitimate,” the retailer said in a filing in April. 

In one case with nearly three dozen individual plaintiffs claiming they experienced discrimination in pay and promotions, Walmart is asking the court to sever the claims, arguing that there are too many differences in the women’s roles and work circumstances for their claims to proceed as a group. If not, their claims should at least be tried separately, the retailer has argued. 

“The allegations from these plaintiffs are more than 15 years old and are not representative of the positive experiences millions of women have had working at Walmart,” a company representative said in a statement Wednesday. “We’ve said that if these plaintiffs believe they have been treated unfairly, they deserve to have their timely, individual claims heard in court — but not in some package that the law does not recognize. We plan to defend the company against these claims.”

But the plaintiffs argue that to do so would subject them to the painstaking process of individually going through trial or even discovery, the process where each side gathers evidence on workplace policies and practices and issues from the other.   

“The practical effect would be that the court would have to hear nearly a hundred cases individually,” said Lindsey Wagner, a partner at Scott Wagner and Associates P.A., who represents the plaintiffs in the suits. “That means about a hundred sets of discovery opportunities and potentially about a hundred trials.” 

The Florida federal court overseeing the cases has yet to rule on the issue. 

Other retailers are deploying similar tactics. Kohl’s Corp., which is facing a collective action by a large group of current and former assistant store managers, is asking the Wisconsin federal court overseeing the case to let it individually question the employees. 

In that suit, the employees claim that they were wrongly classified as exempt from the overtime pay requirements of the Fair Labor Standards Act. This law allows plaintiffs to seek recourse through a statutory collective action mechanism that requires plaintiffs to actively opt-in to the suit. More than 820 opt-in forms have been filed in the case, the plaintiffs said in a June filing, in which they argued that Kohl’s shouldn’t be allowed to individually question such a large group. 

But Kohl’s has argued there are potentially too many differences in the employees’ work duties, and the hours they worked, to lump their claims together.  

“In this action, discovery from each party plaintiff is necessary to establish liability, defenses to liability, whether opt-ins are similarly situated, and, if liability is proven, damages,” Kohl’s argued in a filing on June 28. 

An attorney for the plaintiffs and representatives for Kohl’s could not be reached for comment. 

This sort of division would complicate the task for plaintiffs in these cases, where they’re trying to show how common workplace policies or practices affected all of them, employment experts said.  

“It’s a way to dilute the force of a collective manner of proof,” said Pauline Kim, a professor at the Washington University in St. Louis School of Law who focuses on employment law. “An individual worker will have a hard time saying, ‘On a particular day I worked past a certain time.’” 

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