State’s Highest Court Reinstates Wal-Mart “Time Theft” Class Action Suit

After a couple of years on the sidelines, a seven year old, multi-million lawsuit against Wal-Mart by its workers is now back on the clock.

On January 8, 2005 Sprawl-Busters reported that a Superior Court Judge in Middlesex County, Massachusetts had ruled against Wal-Mart’s motion to dismiss a class action suit regarding the retailer’s employee time records. But that same court a year later denied class action status for the case. The original suit charged that Wal-Mart failed to pay its employees for their time worked, and did not give them proper meal and rest breaks. The suit was filed by former Wal-Mart workers Crystal Salvas and Elaine Polion. The lawsuit says that Wal-Mart illegally altered timecards to decrease reported payroll expenses, including “clocking out” employees one minute after they clocked in. “This is huge,” the plaintiffs’ lawyer, Robert Bonsignore of Medford, said at the time. “What this means is we have a reasonable probability of success, based on a very tiny sample that showed they knowingly took time away from employees.”

A computer expert hired by the plaintiffs found 7,000 examples in a one year period where Wal-Mart managers deleted large blocks of time from their employee payroll records, according to The Boston Herald. This amounts to what Wal-Mart would call “time theft” from its own workers. Wal-Mart workers have no time cards. Their hours are all recorded by the company computer. If Wal-Mart managers want to shave off hours, only they have the official employee record. Wal-Mart, of course, denied the charges of time theft. This case is one of at least 35 similar lawsuits in other states across the country that claim Wal-Mart forced employees to work overtime without pay. If the Massachusetts “associates” win, Wal-Mart could owe them triple the back wages due each worker. The Boston Herald estimated that this lawsuit could cost Wal-Mart as much as $100 million to settle.

One of the ways Wal-Mart drives down prices is by short-changing its own workers, in this case, by “stealing” hours for free. But Attorney Bonsignore lost his case at the Middlesex Superior Court level. That court decertified the class action status of the lawsuit in November of 2006, which means that the 65,000 affected present and former employees would have to pursue their case individually, and not as part of a larger group. Pursuing individual cases would be cost-prohibitive for most plaintiffs.

The Superior Court decision did not allow Attorney Bonsignore to introduce testimony from his expert witness, and told employees that they could not rely on Wal-Mart’s payroll records to prove their case without first demonstrating that they are overwhelmingly accurate. Bonsignore then filed his case with the Supreme Judicial Court, arguing that the case should be allowed to proceed using Wal-Mart’s payroll records, because Federal and state laws require those payroll records to be accurate, and Wal-Mart uses them to pay taxes and report its financial performance to shareholders.

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