On Monday, Pennsylvania’s highest court affirmed a $188 million award against Wal-Mart and Sam’s Club (collectively “Wal-Mart”) in a class action encompassing almost 187,000 employees who worked for Wal-Mart between 1998 and 2006. Braun v. Wal-Mart Stores, Inc., No. 32 EAP 2012 (Pa. Dec. 14, 2014). Employees were awarded back pay, because the retail giant promised them paid breaks but required them to miss or work through them and to work “off-the-clock.” Even Wal-Mart’s own internal study confirmed that 60,000 violations occurred in just one week. Surely, Wal-Mart will seek certiorari from the U.S. Supreme Court, positioning Braun to be the biggest labor and employment class action case since Wal-Mart’s successful sex discrimination class action, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) (disapproving of trying a sample set of class members’ sex discrimination claims to determine back pay for an entire class without further individualized proceedings).
The sole issue on appeal in Braun was whether Wal-Mart was impermissibly subjected to a “trial by formula” (a Dukes term) resulting in the plaintiffs being improperly relieved of their burden to produce common evidence to support their claims. Wal-Mart argued that allowing evidence of company-wide behavior subjected it to “trial by formula.” It claimed that Dukes protects its right to confront each worker’s case on its own merits, a result that would have required all of the plaintiffs to prove individually when and how often they had to work through breaks and/or “off-the-clock.” The Pennsylvania Supreme Court disagreed, and ruled that “this was not a case of . . . a class action ‘run amok,’” and rejected Wal-Mart’s argument that it was denied due process by being denied the right to confront its accusers.
The “‘trial by formula’ process at issue in Dukes was not at work here, because there was no initial or prior adjudication of Wal-Mart’s liability to a subset of employees that would then be extrapolated to the rest of the class.” Both parties had the opportunity to present evidence, and Wal-Mart’s liability was proven on a class-wide basis, the court wrote. Furthermore, the employees “offered data and analysis from Wal-Mart’s own business records “to support their claim of damages related to systemic wage and hour violations.” In his dissenting opinion, however, Justice Thomas G. Saylor confirmed that even though a plaintiff’s burden of proof may be relaxed in a wage and hour case, “the latitude extended in this case is of an untenable magnitude.”
Due to the damages amount, the fact that the employer is Wal-Mart, and the close relationship of this case to Dukes, the likelihood of Braun being appealed to the Supreme Court is high. Perhaps, we will see another pro-employer Dukes Supreme Court case, whereby the Court agrees with Justice Saylor and guts employee class actions in wage and hour and low-level mistreatment cases.