Just months after a federal judge decertified a class action suit charging retail giant Wal-Mart with complicity in janitorial contractors' abuses of illegal aliens, a second attempt has been filed -- one that looks suspiciously like the first.
The new suit seeks certification on behalf of a class of immigrant janitors who are or have been employed at Wal-Mart stores in the United States who were denied the wages, benefits or other protections to which they are entitled under law. Both suits also include a subclass consisting of class members who were falsely imprisoned or otherwise confined by the company's alleged practice of locking employees inside Wal-Mart stores while they worked.
The suit, like the first, alleges janitors routinely worked seven days a week and were denied overtime pay, in violation of the Fair Labor Standards Act, and that Wal-Mart acquiesced in the illegal practices, in violation of the Racketeer Influenced Corrupt Organizations Act.
But in the first suit, Chief District Judge Garrett Brown held on June 25 that the janitors failed to meet class action requirements because they could not show they were similarly situated. He cited the lack of uniformity in their work schedules, payroll and tax withholding procedures and the fact that some worked for other stores in addition to Wal-Mart. Brown also ruled that their similar job duties -- cleaning restrooms, polishing floors, vacuuming carpets -- were not enough to show they were similarly situated.
Brown allowed the first suit to proceed on behalf of the 17 janitors listed as named plaintiffs. The new complaint, filed Oct. 14, is on behalf of 42 other janitors who are known to the plaintiffs lawyers, but were not listed as named plaintiffs in the first case, says James Linsey of New York's Cohen, Weiss & Simon, one of the plaintiff firms. The other is Garcia & Kricko of Hackensack.
Both suits are captioned Zavala v. Wal-Mart Stores Inc. The lead plaintiff in the latest suit, Victor Manuel Zavala Robles, is the father of the lead plaintiff in the earlier one, Victor Zavala Torres.
Both cases are assigned to Brown, Linsey says. Zavala I is slated for trial on Nov. 29.
Decertification of the class was not the first major setback suffered by the plaintiffs. In 2007, District Judge Joseph Greenaway dismissed the RICO counts and denied an interlocutory appeal. And on Oct. 7 of this year, Magistrate Judge Madeline Cox Arleo issued an order to show cause why two plaintiffs, Teresa Jaros and Petr Zednek, should not be dismissed from the case due to their immigration status and resulting inability to appear for trial.
The plaintiffs maintain that Wal-Mart conspired with various cleaning companies to avoid its responsibility under the federal Immigration Reform and Control Act to verify that they have confirmed each employee's authorization to work in the United States. Their suits claim that senior management of Wal-Mart created the contractor system to save money by exploiting illegals, who tend not to demand lawful compensation or humane working conditions.
Linsey is hopeful that his side will ultimately prevail. "We anticipate that when the matters are fully litigated, we would look for reversal of the dismissal of the RICO action," he said.
Zavala I was filed a few weeks after a coordinated raid by federal authorities against Wal-Mart stores around the country in October 2003, which revealed numerous illegal aliens working as janitors in the chain's stores. Most were from Mexico, Poland and the Czech Republic. Facing criminal charges, Wal-Mart paid the government $11 million in a March 2005 civil settlement stemming from the raid.
Wal-Mart's attorney in the case, Thomas Golden of Willkie, Farr & Gallagher in New York, said he was not authorized to discuss it. A Wal-Mart spokesman, Greg Rossiter, said of the latest suit, "These are the same claims that were brought in 2003. The court has already dismissed these claims and has denied the plaintiffs' attempt to bring collective action. It's improper for the plaintiff's lawyers to refile these claims, and Wal-Mart will ask the court to dismiss them again."