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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