Scheduling snafus landed Walmart and Patagonia in legal hot water.
Two former Philadelphia-area Walmart employees filed a class action lawsuit Tuesday claiming the retail giant violated the city’s Fair Workweek ordinance by infringing on their rights to a predictable and regular schedule.
Donald Washington and Symone Wilder alleged that Walmart failed to provide them with work schedules 10-to-14 days in advance or give them “predictability pay” when their schedules were changed within that window. Washington and Wilder, who both were hourly employees at the store, say that the company hadn’t given them the ordinance requirement of nine hours off between shifts. They also claim Walmart would not give existing workers the first opportunity to work additional shifts before hiring new employees to fill them.
The complaint noted that each instance of a violation could result in statutory damages ranging from $25 to $1,000 per pay period.
“We take the requirements of the Philadelphia Fair Workweek ordinance seriously and have policies in place to comply with it,” a Walmart spokesperson told Sourcing Journal. “We will respond to the lawsuit as appropriate once we are served with the complaint.”
Philadelphia’s Fair Workweek law went into effect on April 1, 2020. Under the law, new employees in the retail, service and hospitality sectors are supposed to receive “good faith estimates” of their upcoming schedule, which the suit alleges Walmart failed to deliver. The law initially required employers to give workers their schedule 10 days in advance before expanding to 14 days on Jan. 1, 2021.
If an employer changes an employee’s work schedule after the required notice period, the law requires the employer to give another full hour’s worth of additional compensation—called “predictability pay”—for any rescheduled or lengthened shift, or half their normal pay rate for hours that are shortened or canceled.
“The Philadelphia City Council passed the Fair Workweek Law to require retail, hospitality, and fast-food employers to provide their employees with predictable schedules with advance notice, sufficient time between shifts, and pathways to full-time employment,” according to the complaint filed Tuesday in the Philadelphia Court of Common Pleas. “Volatile hours not only mean volatile incomes but add to the strain working families face as they try to plan ahead for childcare or juggle schedules in order to take classes, hold down a second job, or pursue other career opportunities.”
The plaintiffs are filing the suit on behalf of what could potentially be hundreds of hourly, non-exempt Walmart employees in the area.
“The class, upon information and belief, includes hundreds of individuals, all of whom are readily ascertainable based on Walmart’s business records and are so numerous that joinder of all class members is impracticable,” the complaint said. “Questions of law and fact are common to all class members, because, inter alia, this action concerns Walmart’s common scheduling, timekeeping, payroll and compensation policies, as described herein.”
The ordinance is designed to give workers in the covered industries the right to consistent hours so they can better plan and schedule their lives. The city law applies to relevant companies that have 250 or more employees and more than 30 locations, including Walmart, which has more than 10,000 stores worldwide and employs 2.3 million.
A statement from the plaintiffs’ counsel noted this was the first proposed class action filed against an employer since the Fair Workweek Law took effect. Community Legal Services, the pro bono law firm representing Washington and Wilder in the case, had been part of the coalition backing the law and helping the city draft the regulations for its implementation.
While Washington worked at the Walmart from May 2021 to June 2022, Wilder worked there from April 2018 to last September.
Walmart has long been criticized for its labor policies, with the company increasing its minimum wage from $11 to $12 per hour, but still falling behind the $15 base hourly pay for employees at some rivals.
The company has dealt with its fair share of litigation related to workplace conditions, namely wages. Most recently, in March, a New York federal judge shut down Walmart’s attempt to dismiss a suit claiming the company paid manual labor workers late under state law. These affected manual workers include hourly cashiers, front end associates, stockers, receiving associates and sales associates.
Led by cashier Brigette Mabe, the class action suit alleged that despite these manual workers having mostly physically focused job duties, Walmart compensated them on a bi-weekly basis in direct violation of the New York Labor Law (NYLL).
This law specifically requires that manual workers be paid all their wages within seven calendar days after the last day in which they were earned. Due to the fact that these workers were completing physical tasks for more than 25 percent of their shifts, Walmart should have been paying them on a weekly basis, the class action suit alleges.
Patagonia will pay $55,000 settlement after breaking scheduling ordinance
As one scheduling-related lawsuit rages on, another winds down. Patagonia settled allegations that it failed to post work schedules with 14 days advance notice between May 2019 and April 2022, as required by Seattle’s Secure Scheduling Ordinance.
The outdoor apparel and goods retailer agreed to pay $54,654.45 in civil penalties to 95 employees at its store in the city, and a $575.31 fine to the City of Seattle.
The Secure Scheduling Ordinance is a predictive scheduling law similar to Philadelphia’s Fair Workweek, requiring Seattle employers in retail and food services establishments with more than 500 employees to give hourly workers a written good faith estimate of the median hours they’re expected to work.
The ordinance also requires employers to post work schedules at least 14 days in advance and respect employee’s rights to decline hours not on originally posted schedules.
“I’m very happy that everyone who has worked for the store over the past few years is going to be compensated, and very impressed with the speed and efficacy with which the city has carried out this investigation. I hope this encourages other businesses to put more effort into training and understanding the legal ramifications of not adhering to the law and encourages employees to come forward and self-advocate,” an unidentified Patagonia employee said. “I’m glad that Patagonia was willing to cooperate and hope that they use this opportunity to encourage managers company-wide to better uphold Patagonia’s goal of being a responsible company.”
Seattle’s Office of Labor Standards (OLS) reached an informal resolution with Patagonia to settle the case.
“Patagonia serves as a good example of how companies can ‘do right’ by their employees when faced with labor violations. The company made sure it paid all employees impacted by the alleged Secure Scheduling violations,” said Steven Marchese, OLS director. “OLS has been protecting workers’ rights since 2015 with the help of workers coming forward to report violations. We have also supported businesses to stay in compliance with all Seattle’s labor standards through free training and technical assistance.”
Unpredictable retail scheduling is a long-running issue in the industry, which like many sectors is now facing a labor shortage. Certain practices like on-call scheduling notably came under fire in the past decade, ignited by then-New York Attorney General Eric Schneiderman’s investigation into the scheduling practices of 13 major retailers in 2015. In the wake of the probe, apparel retailers like Gap Inc., Victoria’s Secret, Abercrombie & Fitch, Urban Outfitters and J.Crew among others eliminated the practice nationwide.