Mo. Court of Appeals upholds Wal-Mart class action

Daily Record and the Kansas City Daily News-Press, Jun 13, 2007 by Charles Emerick

Workers from 128 Wal-Mart and Sam's Club stores across Missouri do make up a class, an en banc appeals panel found.

The Missouri Court of Appeals Western District on Tuesday unanimously affirmed a trial court decision certifying a class action claming Wal-Mart and Sam's Club forced employees to miss breaks and work off the clock.

"It now clears the road for us to process - as a class action - these claims," said plaintiffs' attorney Steve Long, of Shughart Thomson & Kilroy's Denver office.

Wal-Mart spokesman John Simley said the company was disappointed with the decision and exploring its options for appeal.

The 200,000-plus plaintiffs worked at the Missouri stores during a seven-year period. They alleged that the world's largest retailer failed to pay them for all of the time they worked and filed the lawsuit in August 2001.

Jackson County Circuit Judge Sandra Midkiff granted the class certification in November 2005 after a seven-day evidentiary hearing in July 2003.

Midkiff separated the plaintiffs into two classes - one for Wal- Mart hourly employees and one for Sam's Club hourly employees.

She also divided each class into four subclasses based on the issues of the case - missed rest breaks, false deductions for meal breaks, time spent locked in stores after closing and off-the-clock work.

Wal-Mart appealed the certification and argued before an 11- judge appellate panel in January that Midkiff abused her discretion.

Among its arguments, Wal-Mart attorney Kurt Williams, of Berkowitz Oliver Williams Shaw & Eisenbrandt, said the plaintiffs' claims lacked commonality, and each claim needed a case-by-case assessment to determine the plaintiffs' unjust enrichment claims.

Williams said there were different circumstances surrounding each case of off-the-clock work and missed breaks.

The court denied that point.

"At its essence, this is a case about an employer's obligation to compensate its employees for all the time worked," Judge Thomas Newton wrote in the opinion. "Wal-Mart's alleged understaffing and other corporate schemes is a common course of conduct, even if the uncompensated work performed by the class members may differ."

Wal-Mart also argued the trial court's subclass definitions were overbroad because they included individuals who had not suffered.

The appellate court ruled that only the subclass that included plaintiffs who were locked in the store after closing was overbroad and suggested to the trial court how to "cure" the definition.

That subclass has language that "suggests that an employee who was locked-in but did not work (off the clock) is a class member. The class, however, must include only those who are injured. Because the injury is uncompensated labor, all class members must have worked while (off the clock)."

In their only remand, the appellate judges ordered the court to redefine four opt-in subclasses as opt-out subclasses.

Long said Tuesday's ruling cleared the way for a trial, although Wal-Mart is exploring further appeal options.

"What the court has done, it has given the case the strength of a class action," he said. "The claims are not very large when you look at them individually. It would be nearly impossible to proceed individually. It allows these class members to have their day in court, which they wouldn't otherwise have."

Wal-Mart faces similar class action suits across the country.

Last month, the New Jersey Supreme Court reversed two lower court rulings that denied the workers' right to sue as a group.

The retailer won a New York decision Monday, when a state Supreme Court judge denied a class certification.

And since December 2005, according to Bloomberg News, juries in Pennsylvania and California have awarded Wal-Mart workers a total of $251 million in pay and damages over such claims.