Wal-Mart Wisconsin Employees Fail in Effort to Certify Class Action for Unpaid Meal and Rest Breaks

March 28, 2006

Recently, the Wisconsin Court of Appeals decided that Wisconsin will not be a state where Wal-Mart employees can litigate whether they were properly paid for meal and rest breaks. Hermanson, et al v. Wal-Mart Stores, Inc., 2001 CV8080 (Feb 21, 2006.)
  The complaint sought class action certification for tens of thousands of current and former Wal-Mart employees and alleged the workers were wrongfully denied meal and rest breaks. Similar cases have been filed against Wal-Mart across the country. In 2005, a California jury awarded $172 million dollars to Wal-Mart employees for failure to properly provide such breaks.
In the Wisconsin case, the Court of Appeals found that the proposed class of employees would be “unmanageable” and therefore would not meet the prerequisite for class certification under Wisconsin law. Wisconsin Statutes section 803.08, the class action statute, requires there be four prerequisites for class certification:

a common or general interest shared by all members of the class;
the named parties must fairly represent the class;
it must be impracticable to bring all interested parties before the court; and
the proposed class must be manageable.

The court observed that the evidence in this case would include “not only the examination of each and every member of the proposed class, but, also, their co-workers and supervisors, and, in some or many cases, their friends and family.” As an expert for the employees had estimated the class of Wal-Mart employees to be at least 80,000, the court observed, “to say that such a trial would be unmanageable is somewhat akin to saying that the sun is warm or that the universe is large.” Accordingly, the court affirmed the trial court’s decision to not certify the class.
What Wisconsin employers need to know: Although Wisconsin state law does not require employers to provide meal or rest breaks, employers can be contractually liable if the breaks are promised to employees in company handbooks. This was the basis for the Wisconsin Wal-Mart class action claim cited above. (Note that although the court refused to certify the class action in the above case, Wisconsin Wal-Mart employees may still proceed individually with their claims.) Handbook language should be reviewed to ensure the employer has discretion to refuse meal or rest breaks during busy times. In addition, employers must ensure that employees are relieved from all work during unpaid breaks and that any unpaid break is at least thirty minutes long. If you have questions regarding the above, please contact Sara Ackermann, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

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