From Wal-Mart to hot dogs, courts important for workers

PITTSBURG, Calif. - So you still don't think courts are important to workers? Betty Dukes and Nolan Koewler can quickly set you straight. Dukes lost, Koewler won and the courts involved ranged all the way from the nation's highest tribunal down to a state court in Indiana.

Dukes was the lead plaintiff in the massive proposed class action suit by 1.6 million present and former female Wal-Mart workers against the monster retailer. Their case, with evidence gathered just to try to go forward as a class, showed mass sexual discrimination in pay, promotions and management.

Koewler was trying to get jobless benefits after his employer fired him and opposed his benefits claim for "stealing" two frozen hot dogs.

Wal-Mart used its millions to fight the women for a decade all the way through the courts on the basic issue of whether they could sue at all as a class, or whether they'd have to take on the giant one-by-one. Wal-Mart lost that question in federal district court. It lost that question in federal appeals court.

By a 5-4 margin, Wal-Mart won U.S. Supreme Court. All five justices who ruled Wal-Mart was, in essence, too big to sue nationally but could be sued individually were white men named by Republican presidents.

The overwhelming majority of Wal-Mart's managers are also white men. Dukes is a dignified 61-year-old African-American grandmother.

Koewler won his jobless benefits in the Indiana Court of Appeals. His former employer, Dillard's department store, fired him and opposed his claim after its security camera showed he took two leftover frozen hot dogs on the day after the company's July 4, 2010, picnic. Koewler took them home for dinner. Dillard's wanted to save them for the following Labor Day picnic. It accused him of theft and gave him a choice of being fired for theft or spending a night in jail. He chose firing.

Then Dillard's tried to deny Koewler's jobless benefits. The court sided with Koewler. The Indiana employment department's appeals "board's determination of the ultimate fact that Koewler was terminated for just cause as a hotdog thief is not reasonable," the Indiana judges said.

Those two extremes of 1.6 million workers on one hand and one worker on the other reinforce the point of the importance of courts for workers. So do other recent cases, both at the Supreme Court and - more often - in appellate courts:

If you change your pension plan, you'd better be honest about the impact. That's what the Supreme Court ruled on May 16 about CIGNA's switch from a traditional defined-benefit pension plan to a defined contribution plan. Some 25,000 people sued, saying the insurer didn't make it clear that the switch, and the switch of lump sums covering the old pension plan's value for each of them, could cost them money. Cigna said just telling them the details of the switch was enough. Associate Justice Stephen Breyer, writing for the court, said they could still sue over the results.

 "To obtain relief by surcharge for violations" of the pension law, ERISA, "a plan participant or beneficiary must show that the violation injured him or her. To do so, he or she need only show harm and causation. Although it is not always necessary to meet the more rigorous standard implicit in the words 'detrimental reliance,' actual harm must be shown. Information-related circumstances, violations, and injuries are potentially too various in nature to insist that harm must always meet that more vigorous 'detrimental harm' standard when equity imposed no such strict requirement," he added.

Federal law does not prevent California from going after a truck firm for mislabeling workers as "independent contractors." In an issue important to tens of thousands of truckers in California [Clean ports, truck driver rights at issue on Capitol Hill, May 10 2010] alone - not to mention others elsewhere whom the Teamsters seek to represent - the Los Angeles County Superior Court ruled May 18 the state could sue trucking companies that mislabel workers as "independent contractors."

The judges found that Pac Anchor Transportation violated California's Unfair Competition Law by misclassifying the workers. Calling workers independent contractors lets companies get away with not paying Social Security, Medicare, unemployment insurance or workers comp. And workers aren't "employees," so they can't organize into unions. Trucking companies and other firms use the independent contractor dodge to evade the taxes, but Jerry Brown, then the state attorney general sued Pac Anchor over the dodge, showed it controlled the workers, and won.

You can't count your housing for farm workers as part of their minimum wage. That's what the 9th U.S. Circuit Court of Appeals ruled in May in a case involving southwestern Oregon's Bear Creek Orchards. The orchard brought in farm workers from Arizona to pick its pears in the high season, and put them up in dorms it owned. But then the orchard claimed the housing was part of the workers' minimum wage under Oregon labor law, and the workers, aided by public interest lawyers, sued. They won. Looking at the testimony, the court declared that the housing was more for the convenience of the orchard than of the workers, because by lodging the workers, the orchard would always have a guaranteed number available when needed.

A company's confidentiality rule is illegal if it chills speech about wages and working conditions. The National Labor Relations Board said so in 2004, and repeated that several years later. The First U.S. Circuit Court of Appeals in Boston reaffirmed the repeat on May 22. Northeastern Land Services, a Rhode Island temp firm, fired Jamison Dupuy for violating the confidentiality provisions. It said he talked too much about wages. The judges said labor law protected Dupuy - and all workers.

 "Mere maintenance of a rule that would reasonably tend to chill employees in the exercise of their rights is unlawful under NLRB case law, and there need not be any evidence of actual chilling of union activity, as NLS claims," the judges wrote.

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