Taking on the giant of giants

For decades, Walmart has dominated much of the retail market, often at the expense – literally and figuratively – of local communities. With the rapid growth of Walmart, everything from the proverbial mom-and-pop shop to community infrastructure has evidently been undermined. Working conditions for Walmart employees also apparently have worsened over time, reportedly prompting some employees, for example, to seek public assistance due to the low wages and lack of benefits that many Walmart jobs provide.

In this context, current and former Walmart employees, as well as people of conscience from across the country, are now stepping up and speaking out about the need for workplace democracy and dignity at the largest retail company in the world. As a result, an organization called Our Walmart has formed to engage Walmart about the company’s labor and employment practices. Most recently, Our Walmart members participated in protests nationwide on Black Friday, the day after Thanksgiving, to highlight what they believe to be unfair treatment of Walmart employees. This expanding campaign – which spans generations, cultures, and regions – draws at least some of its inspiration and energy from the Occupy Movement that first emerged in the Fall of 2011 and has continued to date with more localized initiatives on region-specific issues.

Walmart evidently is not taking the popular push for greater equity lying down. The company has apparently fired or otherwise retaliated against employees in the recent past. Walmart has also filed unfair labor practice charges with the National Labor Relations Board (“NLRB”) against a labor organization that has sought to organize Walmart employees, the United Food and Commercial Workers Union (“UFCW”), for allegedly breaking the law when helping people assert their rights under Federal labor law and the United States Constitution. Walmart’s aggressive strategy may flow, at least in part, from the company’s recent success in fending off a nationwide class action lawsuit, Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011), which was brought on behalf of millions of women to break the glass ceiling and address other alleged sex discrimination.

Although Walmart received a favorable ruling from a sympathetic United States Supreme Court in Dukes, Walmart is not out of the woods on the sex discrimination issue – much less regarding the broader question about Walmart’s labor and employment practices in general. As to the class claims of sex discrimination, Walmart now faces multiple regional class actions rather than one nationwide case. There are many reasons to believe that Walmart’s supposed victory in Dukes will end up costing the company more in attorney’s fees, litigations costs, and possible damages awards – not to mention the potential for an echo chamber of bad press if Walmart loses several of the now multiple regional class actions (as opposed to losing one nationwide case).

Just as Walmart’s response to class action claims may end up hurting more than helping the company, Walmart’s approach to the campaign led by Our Walmart may also cause a legal and public relations backlash. In particular, Section 7 of the National Labor Relations Act protects the right of employees – even in non-union workplaces – to engage in concerted activity to improve employment terms and conditions, and the First Amendment to the Constitution guarantees the freedom of association, assembly, and expression. In addition, international human rights regimes ratified by the United States, including the International Covenant on Civil and Political Rights, enshrine such rights. Yet Walmart seems intent on pursuing tactics against Our Walmart and its allies, including UFCW, in ways that very well may conflict with the country’s core protections – alienating consumers and the larger public in the process.

In the months and years ahead, the propriety of Walmart’s response to the broad-based campaign led by Our Walmart and the regional class actions pending around the country will likely be on trial before the National Labor Relations Board or in the courts of law as well as in the courts of public opinion. Stay tuned here for further analysis as the campaign and class action cases move forward.