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PJC Appeals For Wal-Mart Workers Forced to Work Off the Clock

Cutler, et al. v. Wal-Mart Stores, Inc., et al., No. 01376, September Term, 2005, Maryland Court of Special Appeals
On February 10, 2006, the Public Justice Center filed a brief with the Maryland Court of Special Appeals in a case concerning the rights of a class of 58,000 hourly Wal-Mart employees to be paid for time worked.  In particular, plaintiffs filed this action on numerous state law grounds challenging Wal-Mart’s uniform and corporate wide pay practices which caused employees to work “off-the-clock” and which short changed employees on promised rest and meals breaks.
This case arises from the results of an internal audit that Wal-Mart conducted in 127 stores nationwide, including three stores in Maryland, showing that these stores were not in compliance with company and state regulations concerning the allotment of breaks and meals as over 76,000 “exceptions were noted . . . for a one week period.”   In addition,  an April 4, 2004 New York Times article in which Wal-Mart’s own executives publicly acknowledged that Wal-Mart managers had been cheating employees out of compensation for years through what the company calls “one-minute clock-outs,” a practice of altering records to show workers clocking out for the day one minute after they had clocked in.
The Circuit Court for Prince George’s County denied class certification on the grounds that, among other things, “individual, not common issues, predominate” and that Plaintiffs’ use of expert statistical extrapolation and survey data violated Wal-Mart’s due process rights.
On appeal, the Public Justice Center, Joseph Greenwald & Laake, P.A., the Furth Firm, LLP, and Cohen, Milstein, Hausfeld & Toll, P.L.L.C. argue that the circuit court erred in three ways:  first, by relying solely on subjective evidence of statistical extrapolation and survey data to conclude that individual issues predominate, the circuit court ignored that the bulk of plaintiffs’ claims are based on objective evidence of Wal-Mart’s own time keeping records; second, by concluding that Plaintiffs’ expert analysis of Wal-Mart’s time keeping records, as well as its expert statistical extrapolation and survey data, violated Defendants’ right to procedural due process; and third, in not finding that common issues predominated on Plaintiffs’ numerous state law claims.
Francis D. Murnaghan, Jr., Appellate Advocacy Fellow Roscoe Jones, Jr. and PJC Director of Appellate Advocacy Suzanne Sangree are lead counsel on appeal for plaintiffs.

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