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In today’s Wall Street Journal, Home Depot co-founder Bernie Marcus acknowledges he sees in the retiring Justice David Souter a jurist with a “moderate or restrained record” – one which plaintiffs’ lawyers and unions would hope to avoid in a replacement. Earlier today President Obama announced his nominee to replace Justice Souter on the U.S. Supreme Court – Sonia Sotomayor, of the U.S. Court of Appeals for the Second Circuit – and the question now: Is this a good thing for businesses like Wal-Mart?

The primary reason for asking this question at this time is because there exists the very real possibility that at some point in the relatively near future, Wal-Mart’s lawyers will be defending their client before the very Court that Judge Sotomayor is being nominated to.

Just two months ago, the Ninth Circuit Court of Appeals re-heard en banc arguments in the well-traveled Dukes v. Wal-Mart sex discrimination case – plaintiffs are hoping the full court will affirm a previous Ninth Circuit decision that upheld the lawsuit’s ability to proceed as a class action. If that happens, Wal-Mart will have two options – accept the decision and proceed to trial, or appeal the decision to the U.S. Supreme Court.

Should Wal-Mart come out on the short end of the Ninth Circuit and find itself in front of the Supreme Court, Sotomayor could be the newest of the nine justices the company will have to convince in order to have Dukes’ class action status removed. Judge Sotomayor’s voting record is now being parsed, and certainly as the vetting process moves forward, we’ll learn more about what kind of effect she could have on a potential Dukes decision. Most view her record as decidedly moderate, though she has implied in the past that the gender and ethnicity of judges should and does influence their judicial decision-making.

As a woman and a minority, could this be a bad omen for Wal-Mart? We’ll see...until then, however, we’ll have to make do with some of her career highlights, which you can find after the jump…

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It’s time for the latest addition of Wal-Mart Watch’s speak out round up. As workers continue to write to us about their experiences with Wal-Mart, we’ll make sure to highlight some of the best submissions of the week. The following comments include a retail industry veteran telling it like it is, the experiences of a disabled employee, the departure from Sam Walton era values, and a dream job gone wrong.

A former employee from New York writes to us anonymously to say that Wal-Mart is one of the worst jobs out there:

“I’m 62 years old with 18 years of produce experience and over 30 years experience in retail. I wanted a part-time job to help pay for the extras my wife and I love. I took a job at hell-mart. In all my years of working in retail, I have never witnessed a company as heartless as Wal-Mart.

The pay is a joke; I was told my starting pay is based on my experience (LOL). I make $8.30 an hour. I was told I would be part-time...24 hours a week. They have no one in the produce department who knows what they are doing so they work me two weeks at 40 hours and then one week of 32 hours. This way they don’t have to make me full time and won’t have to pay for benefits.

When I complain about the number of hours I’m working, they tell me how lucky I am to be working at Wal-Mart. The hours are a joke. Every week is different. You never get the same hours from week to week. It’s impossible to plan anything.

God help you if you get sick. You better come in and work no mater how you feel. If you take a sick day five times in any six-month period, they coach you. This is when they take you behind closed doors and read you the riot act. If you are sick one more day after that, you are fired - for any reason they want. I have seen some very sick people come into work - so sick, they could hardly stand up. Wal-Mart doesn’t care. If they ask to go home, they are told it will count against them if they do. I was told even if your doctor puts you off from work you still have a count against you. There is absolutely no excuse for being sick.

There is a God and I just pray one day that the Walton family pays for the way they treat the people who make them rich. I have only been there for 7 months and I could tell you things you wouldn’t believe, it is unreal the way they treat the employees.”

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Between chronic cataracts and glaucoma, he’s been sightless since birth. Yet every weekday from 7 a.m. to 4 p.m. at a Wal-Mart in Metro Detroit, you can see Norris Hull (pictured, right) handle the switchboard, ride herd on managers, make announcements and show customers to the dressing rooms - counting by touch to make sure how many items they’re taking in.

Norris Hull’s story would, in the best of worlds, serve not one but two purposes. It is, of course, a much-needed feel good story - especially when that story is written by a Detroit newspaper serving a still proud but mightily struggling community. It isn’t that we have to be smiling anytime we read about someone overcoming adversity to be a positive influence on his/her community, but we are nonetheless, especially when we read passages like this:

What raises eyebrows is how he affects the people around him—the co-workers who watch out for him when he’s walking the aisles, the customers who call him by name, the managers such as Whigham-Johnson, who tells him, “I don’t know what I’d do without you.”

But more important then the smiles and warm fuzzies we take from Norris’s story is the lesson that Wal-Mart takes. We’ve documented case after case of Wal-Mart forcing disabled employees off the schedule by requiring them to take medical leave. The company has been in trouble in the past for seeking disability-related information on job applications, and last year the EEOC filed two lawsuits within weeks of each other for discrimination under the ADA. What someone really needs to do is take the story of Norris Hull and send it to each and every Wal-Mart executive and store manager in the United States, to remind them to take a hard look at every applicant and employee that crosses their path and judge them on their ability and potential, not their disabilities.

“I like to laugh. I like living,” he says. Sometimes he’ll dream that he can drive a car, but when he wakes up he hops back on the MetroLift bus, and that’s fine...He’s not out to be anybody’s inspiration, he says; he’s simply carrying on the best way he can. When duty calls, you answer.

He may not aim to be anyone’s inspiration, but if he inspires Wal-Mart management to view their employees with with open mind, that certainly counts as a good step in our book.

Blind man shows coworkers that sight isn’t prerequisite to job well done [Detroit News]

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From IPS (Inter Press Service): When a woman was interviewed for a job at a local Wal-Mart in the Mexican capital, the first thing she was asked was whether she was pregnant – a question she did not know at the time was illegal.

The woman, who goes by the fictional name of Paulina, is just one of many cases IPS cites in describing the growing problem in Mexico of discriminatory behavior towards women.

“I had to present a certificate of my state of health to get the job,” Paulina tells IPS in the parking lot of one of the U.S. retail giant’s stores in Mexico City. Paulina’s case is an illustration of the persistence of discriminatory practices that violate the labour rights of women in Mexico, even though they represent 42 percent of the workforce in Latin America’s second-biggest economy.

In the U.S. under the Pregnancy Discrimination Act of 1978, pregnant women cannot be treated differently than other workers experiencing a temporary disability. In effect, they are treated as being temporarily disabled under the Americans with Disabilities Act, and are therefore subject to certain protections. And despite that fact, Wal-Mart has still been the subject of numerous disability-related lawsuits, many of which we have documented here. Several years ago, Wal-Mart was forced to settle with the EEOC after the company failed to hire a woman based on her pregnancy. In Mexico, however, there aren’t nearly the protections that exist here to the north - and a recent report by the Economic, Social and Cultural Rights Project has focused on Wal-Mart in particular:

The report, “Lo barato sale caro: violaciones a los derechos humanos laborales en Wal-Mart México” (roughly, “cheap is costly: violations of labour and human rights in Wal-Mart Mexico"), concluded that the corporation violates rights in terms of wages, health, security, hours, overtime pay and labour benefits. It also blocks the creation of trade unions under the argument that its employees are considered “associates...” One of the authors of the report, PRODESC researcher Shaila Toledo, pointed out that women workers suffer discrimination and exploitation, such as being required to take a pregnancy test before they are hired, and being bypassed for promotion.

With Dukes v. Wal-Mart slowly moving forward here in the U.S., this doesn’t speak well for Wal-Mart’s claim to be changing its ways in North America.

LABOUR-MEXICO: “They First Asked if I Was Pregnant” [IPS]

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We’ve been following Wal-Mart’s transgressions against its disabled employees for some time now, focusing in particular on the company’s consistent refusal to provide them with ADA-mandated reasonable accommodations. We have, as well, followed issues that disabled customers have had with the retail giant, including facing refusals to allow service animals into the store - this case involving the lovable Chloe (pictured right) comes to mind.

Now, the Civil Rights Division of the U.S. Department of Justice recently entered into a settlement agreement with Wal-Mart under Title III of the Americans with Disabilities Act, requiring the company to improve access for persons with disabilities at Wal-Mart stores nationwide. A big thanks to journalist/blogger Suzanne Robitaille, formerly of BusinessWeek Online, for sending over the DOJ info. You can check out her blog here. The agreement resolves an investigation that began after the DOJ received several complaints alleging that Wal-Mart had refused to provide “reasonable modifications to its rules, policies, practices, and procedures for customers with disabilities.” Wal-Mart has agreed to take a number of steps, including:

* an undertaking by Wal-Mart not to discriminate in violation of Title III of the ADA and to provide reasonable modifications to individuals with disabilities as required by Title III of the ADA, such as disability-related assistance such as helping customers in locating, lifting, and carrying items;
* the adoption and implementation of an ADA-compliant policy of welcoming persons with disabilities who use service animals into Wal-Mart stores with little or no questioning and without repeated challenges by Wal-Mart employees;
* training for all employees on Wal-Mart’s obligations under Title III of the ADA to make reasonable modifications for individuals with disabilities and Wal-Mart’s new ADA-compliant service animal policy;
* additional training for store management and People Greeters, since employees in these positions have additional responsibilities under Wal-Mart’s new service animal policy;
* the posting of Wal-Mart’s new service animal policy on its website and in employee areas at its stores;
* the establishment of a grievance procedure in which Wal-Mart will receive complaints alleging violations of Title III of the ADA at a toll-free hotline, investigate such complaints, and take appropriate corrective actions to resolve any noncompliance with Title III of the ADA, including relief to complainants where appropriate.

For a recap of Wal-Mart issues with disabled employees, you can check out our report Reasonable Accommodation: Denied here.

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subrogation - n. assuming the legal rights of a person for whom expenses or a debt has been paid.

Subrogation, and the story of former Wal-Mart employee Debbie Shank, broke into the news with a vengeance just a little over one year ago after Wal-Mart Watch brought her story to the attention of the Wall Street Journal. A collision with a semi-trailer truck eight years ago left Debbie Shank permanently brain-damaged and in a wheelchair. Hoping to help cover Debbie’s nursing home costs, her husband Jim sued the trucking company that hit her. The family won a modest settlement, after which Jim received a call from Wal-Mart’s attorneys. Wal-Mart’s health plan, through a little-known clause in its health plan, sued the Shanks for the $470,000 it had spent on her medical care, and a federal judge ruled in Wal-Mart’s favor. And hence, the issue of subrogation and the Shanks became a national story in both print and broadcast media across the country.

The story ends, or at least has settled, on a more positive note. On April 1, 2008, Wal-Mart dropped all pending litigation against the Shank family. Thanks in part to the hundreds of people who wrote in to the company, as well of the contribution of many major news outlets, Debbie’s family will keep the money currently being held in trust for her future care, though how long that will last remains to be seen.

The story has now added another chapter, however. Individuals suffering catastrophic injuries like those that resulted from Debbie’s violent traffic collision will no longer have to worry about the threat of subrogation. Wal-Mart Watch has confirmed that Wal-Mart’s 2009 health care plan exempts the company’s right to subrogate against a covered person completely in cases of: 1) paraplegia or quadriplegia; 2) severe burns; 3) total and permanent physical or mental disability; or 4) death. In all other cases, the plan also limits the right to recover to 50% of a settlement (Including attorney’s fees).

You can read our press release after the jump. At the bottom you’ll find links to Wal-Mart’s 2008 benefits plan, plus the 2009 amendments.

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Wal-Mart has, unsurprisingly, been the target of more lawsuits than one can count over the years. The company’s treatment of its workers and “save money at all costs” mentality has resulted in a flood of legal challenges ranging from single plaintiff suits to multi-million dollar class actions.

Dukes v. Wal-Mart is of course one large example (the largest class action in American history, actually), as are the myriad wage/hour/overtime class actions the company faces. Recently, we also reported on Wal-Mart’s poor treatment of its disabled workforce.

Wal-Mart Watch will be focusing on these individual stories, highlighting cases that warrant further attention because of the insight each gives in its own way on how Wal-Mart feels about its employees.

John Lennex v. Wal-Mart Stores East, L.P.

John Lennex was hired by Wal-Mart on September 7, 2004, as a Bicycle Assembler. You take your kid into Wal-Mart, buy him the latest Huffy bicycle (now conveniently made overseas, since Wal-Mart forced the bike manufacturer to go broke), and John Lennex will put it together for you. Or he would have, had he not been fired.

Lennex has coronary artery disease. He requires a defibrillator to regulate his heart beat, and is limited in his life activities. He is recognized as have a life-limiting disability under the Americans with Disabilities Act. And when he was hired, his managers were well aware of his condition.

When he was hired, bicycle assemblers were also allowed a certain comfort in their job – that is, they were actually allowed to sit on a stool while they built their bikes. When he received a new department manager in 2005, however, this changed. His new supervisor, Tye Wilson, told the employees to say bye-bye to stools or chairs. Despite knowing of Lennex’s disability and the fact that stools were readily available, AND that Lennex had performed his job admirably to that point, Wilson refused a request by Lennex for a reasonable accommodation that would let him continue to sit.

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For the second time in as many weeks, Wal-Mart has been accused of violating federal law by the U.S. Equal Employment Opportunity Commission.

In the first lawsuit filed earlier this month in Illinois, the EEOC accused Wal-Mart of violating employment provisions of the Americans with Disabilities Act. This time around, the suit involves not disability but age discrimination. The ADEA - or Age Discrimination in Employment Act of 1967 - prohibits employment discrimination against persons 40 years of age or older in the United States. After an investigation, the EEOC determined Yvonne Loskot was fired from the retailer’s De Soto, Missouri, store because she was too old and made too much money.

According to the EEOC complaint filed in federal court in Missouri’s eastern district, Loskot was 67 when she was fired. According to a story from the St. Louis Business Journal, Wal-Mart has claimed Loskot was let go for violating an unspecified company policy.

Loskot, who worked for Wal-Mart for a decade, earned $18 an hour as a certified optician, making her the highest-paid employee in the De Soto store’s optical department.

Agency accuses Wal-Mart of age discrimination [CNN Money]

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In a press release distributed this morning, Wal-Mart has announced that it is “once again driving unnecessary health care costs out of the system and passing the savings along to its customers through the pharmacy aisles.”

How is it doing it this time? By offering exclusive-to-Wal-Mart diabetes management products for $9 each at all Wal-Mart pharmacies nationwide. That, might I say, is quite excellent actually. I myself don’t have - and don’t have immediate family members who have - diabetes. But I’ve known and worked with people who do, and one thing an individual with diabetes shouldn’t have to worry about is the cost of testing and treatment supplies, which I could imagine can get quite expensive.

No, the problem with this story isn’t in what Wal-Mart is announcing. It is, instead, the way in which Wal-Mart has treated its own employees who have diabetes. Helping the masses might seem a little nicer if the company treated its own diabetic employees with slightly more compassion and understanding.

The gold standard of what I’m talking about is the story of Stephen Orr. Orr worked as a pharmacist at a Nebraska Wal-Mart. Orr has Type 1 diabetes, a condition in which the body does not produce insulin, a hormone needed to convert sugar, starches and other food into the energy needed for daily life. As a result, Orr must administer insulin to himself several times each day. For a while, management allowed him to, you know, do the things he needed to do over the course of a day to stay alive...like actually take a lunch break. Eventually though, business and customer traffic forced Wal-Mart - instead of hiring an additional pharmacist - to inform Orr he could no longer take a break to eat and rest. In fact, he was told to eat behind the pharmacy counter if and when store traffic slowed. If you can’t guess what happened, I’ll tell you - Orr’s blood glucose levels dropped severely on multiple occasions, causing him to experience symptoms of hypoglycemia, which can include dizziness or lightheadedness, confusion, difficulty speaking, and feeling anxious or weak. Wal-Mart still refused to accommodate him, and his manager eventually fired him, explicitly telling him it was because of his diabetes.

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The Equal Employment Opportunity Commission has filed suit in U.S. District Court in Illinois for violating employment provisions of the Americans with Disabilities Act. The suit was brought yesterday on behalf of Barbara Hacker, a Wal-Mart greeter who suffers from epilepsy. Click here for a copy of the complaint.

The EEOC is the federal enforcing agency for the employment provisions of the ADA, and this is NOT the Commission’s first run-in with Wal-Mart. In fact, Wal-Mart’s history with the EEOC is littered with lawsuits, settlements, and broken promises to eliminate barriers for applicants and employees with disabilities. A report by Human Rights Watch found that between 1992 (when the ADA went in to effect) and 2002, sixteen suits had been filed by the Commission against Wal-Mart for violating Title I of the ADA, the most filed against any single corporation. Several more cases have been filed since then, two of which were settled earlier this year. (For more info on these, click here and here.)

As for Barbara Hacker, she informed her supervisors when she was hired about her epilepsy. She asked for nothing more than the reasonable accommodation of being allowed to sit for a couple minutes in a quiet place while she recovered from seizures. For a time she was accommodated, but ultimately she was fired after having a seizure in a back room off the sales floor at the Rockford Wal-Mart. According to EEOC attorney Aaron Decamp:

[T]he lawsuit was filed after Hacker filed a complaint with the EEOC in late 2006, after she was fired. EEOC investigators determined the claim had merit, and attorneys tried to reach a settlement with Wal-Mart before the suit was filed.

It should be noted that being the top lawsuit target of the ADA enforcement agency is probably not a good thing. Resources do not allow the EEOC to prosecute every case, which is why the Commission uses “strategic and vigorous” litigation as an enforcement tool.

Equal Employment Opportunity Commission files suit against Wal-Mart [Rockford Register Star]

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Wal-Mart has, unsurprisingly, been the target of more lawsuits than one can count over the years. The company’s treatment of its workers and “save money at all costs” mentality has resulted in a flood of legal challenges ranging from single plaintiff suits to multi-million dollar class actions. Dukes v. Wal-Mart is of course one large example (the largest class action in American history, actually), as are the myriad wage/hour/overtime class actions the company faces.

Just as important as those large class actions, however, are the countless suits filed by individual plaintiffs – the tiny David trying to win justice over Wal-Mart’s Goliath.  We at Wal-Mart Watch will be focusing on one of these stories each week, highlighting those cases that warrant further attention because of the light each sheds in its own way on how Wal-Mart does business.

James E. Faust v. Wal-Mart Stores East, L.P.

Wal-Mart Store Manager Grace Gibson hired James Faust as a store greeter at a Wal-Mart in Calera, AL in April of 2001.  Gibson was well aware of Faust’s physical disabilities, permitting him to rely on his own motorized scooter in the performance of his job duties for the first three years of his employment.  In February of 2005, Gibson disallowed Faust from leaving the scooter at the store overnight to recharge and informed him that he could use the store’s scooter (whenever it was not in use by customers).  Once Gibson prevented Faust from keeping his scooter at the workplace, Faust promptly filed a claim with the EEOC.

After the EEOC charge was filed, Faust was then prohibited from using Wal-Mart’s scooter, and was instructed to use the store’s (broken) wheelchairs.  Faust continued to work at the store for approximately three more months, walking and sitting as much as possible.  Before long, the lack of accommodation and disregard for his disability proved overwhelming, causing Faust to resign and file a complaint in federal court.

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