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Wal-Mart's labour practices face trial yet again

ATLANTA: A short-haired, heavyset woman of 59, rings flashing from every finger and both thumbs, glares from the witness stand at a conservatively suited, confident young lawyer who is trying to rip apart her case against the largest retailer in the world. Wal-Mart’s labour practices are on trial, again, this time in the three-river town of Hastings, Minnesota. Plaintiffs, granted class-action status, say the company stole time from some 56,000 hourly workers at Minnesota Wal-Marts and Sam’s Clubs by making them work off the clock.

Screens around the courtroom display time records for December 26, 2000. They show the witness clocked out for lunch at 2 pm and clocked back in precisely 30 minutes later, the maximum Wal-Mart allowed. Not 28 minutes. Not 31 minutes. The exactitude hints that a supervisor might have changed the record to slip in a lunch break the witness never took. "You have no way of telling us that meal period wasn’t actually taken that day," asked Shawn Rabin, a lawyer for Wal-Mart.

"Correct," replied the witness, Debbie Simonson. And so the defence chips away, a few dollars here, a few dollars there, at the plaintiffs’ claim that Wal-Mart stole $27.3 million in wages from them. This case and others like it pose a classic question. How do you prove a widespread practice if individual incidents create nominal harm and are hard to pin down?

If not through a class action, how are those who profit from a little bit of wrong done on a big scale stopped and punished, and how are the wronged compensated? In the Minnesota case, as in 30 other attempted or successful class actions around the country, plaintiffs say Wal-Mart knowingly hired too few people to do too much work. To fill the gap, managers pushed hourly workers to skip a lunch here, a rest break there, and sometimes stay a few minutes after clocking out, the lawsuits claim. Basic human functions took a back seat to the work, the workers say.

"Skip the bathroom and get your butt back up front ASAP," Simonson said she was told during one of her many failed attempts to take a break. "It was a constant problem," said Simonson, who worked the jewellery counter and other posts at a suburban Minneapolis store. She testified September 25 on the trial’s first day. The plaintiffs count millions of infractions, none worth much, given that their pay hovered around minimum wage. It’s rarely worth it for individual employees to sue on their own or complain to government labour enforcers.

If you’re a company as big as Wal-Mart, the dollars add up. Shaving one-tenth of 1% off Wal-Mart’s payroll would save the company $138 million, Wal-Mart’s then-chief executive officer, David Glass, said in 2001 while exhorting managers to cut back on labour costs, the Minnesota plaintiffs’ lawyer, Justin Perl, said in opening statements.

"When one inflicts minor harm across a dispersed population, the defendant is, as a practical matter, immune from liability unless a class is certified," the New Jersey Supreme Court said in allowing a class-action case against Wal-Mart. While plaintiffs emphasise the big picture in these cases, Wal-Mart focuses on specifics. The strategy has served the company reasonably well in pre-trial skirmishes, not so well at trial.

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