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Wal-Mart break-time plaintiffs seek more damages

The Pa. workers, who had won a $78.5 million judgment, want $72 million more under state law. The retail giant is appealing.

By Maryclaire Dale

Associated Press

Wal-Mart workers in Pennsylvania who won a $78.5 million judgment for working off the clock and through rest breaks returned to court in Philadelphia yesterday to seek an additional $72 million in damages and interest.

They argue that about 125,000 plaintiffs in the class-action suit deserve an additional $500 each in damages, or $62 million, under Pennsylvania labor laws because the jury found Wal-Mart acted in bad faith. These so-called liquidated damages are designed to compensate people for the delay in payment.

The remaining 61,000 plaintiffs - who do not qualify for those damages because of legal time limits - should share in $10 million in interest on the back pay, lawyer Michael Donovan argued.

Wal-Mart, which denies wrongdoing and is appealing the jury award, opposed the added damages and interest. Company attorneys said Donovan merely estimated the number of potential plaintiffs and had not proved that each was shortchanged.

"They don't even know who they are," Wal-Mart attorney Brian Flaherty said.

The workers already are expected to receive anywhere from about $50 to a few thousand dollars each from the initial award, depending on how long they worked for the company.

Philadelphia Common Pleas Judge Mark Bernstein did not immediately rule on the issues argued yesterday. He questioned why Donovan sought liquidated damages of $500 per worker when the statute could be interpreted to allow $500 in damages each time a worker was shortchanged.

"If I'm a claimant, I'm entitled to everything the law says I'm entitled to, and if that's $500 every time I was shorted, and I was shorted 24 times a year, then it's $12,000," Bernstein said.

Donovan said he did not interpret the state wage law that way. He added that Wal-Mart's lack of record-keeping would make it impossible to determine the number of individual violations.

Bernstein oversaw the five-week trial, which culminated in October, when the jury rejected Wal-Mart's claim that some employees voluntarily chose to work through breaks and that the off-the-clock work was minimal.

The suit covers current and former employees who worked at Wal-Mart and Sam's Clubs in Pennsylvania from March 1998 through May 2006.

Wal-Mart, based in Bentonville, Ark., earned $11.2 billion in profit on $312.4 billion in sales in the last fiscal year. Donovan argued at trial that the unpaid work gave Wal-Mart an unfair advantage in the marketplace.

Lead plaintiff Dolores Hummel said she put in about 10 hours each month off the clock to keep up with demands at a Sam's Club in Reading, where the single mother worked for 10 years to support her son. Sam's Clubs are a division of Wal-Mart.

Donovan has also petitioned the court for more than $40 million in legal fees, plus $5.5 million in expenses. Wal-Mart, which must pay the fees unless the verdict is overturned, objected to the request and asked for more details.

Wal-Mart is appealing a $172 million verdict in a similar California case and settled a Colorado suit over unpaid wages for $50 million