Wage woes plague Wal-Mart.

A Pennsylvania court has certified a class action of current and former employees of Wal-Mart Stores, Inc., in a case alleging that the workers were denied rest and meal breaks and were required to work "off the clock." (Hummel v. Wal-Mart Stores, Inc., No. 3217, 2005 WL 3623389 (Pa., Philadelphia County Ct. Com. Pl. Dec. 27, 2005).)

The potential class includes 150,000 current and former employees who worked at Wal-Mart or Sam's Club stores in Pennsylvania since March 19, 1998. The lawsuit claims that Wal-Mart violated the state's Minimum Wage Act and the Pennsylvania Wage Payment and Collection Act.

The case is just one of many similar suits facing Wal-Mart, based in Bentonville, Arkansas. Last December, a jury in Alameda County, California, awarded substantial compensatory and punitive damages to current and former Wal-Mart employees for lunch-break violations. (See Rebecca Porter, Workers Seek Pay for the Lunch Not Taken, TRIAL, May 2005, at 93.) The retailer settled another case in Colorado, and similar actions are pending in many other states, including Alaska, Delaware, Hawaii, Idaho, Nevada, and South Dakota.

Wal-Mart spokesman Kevin Thornton said there are "sharp distinctions" between the Pennsylvania case and California case, which is "still subject to posttrial motions and appeal. For example, the California case hinged upon the trial court's reading of a California meal-period statute."

Wal-Mart "strongly denies the allegations in the Pennsylvania lawsuit," he said, and the company is considering whether to seek an interlocutory appeal from the class certification ruling.

Michael Donovan, a Philadelphia lawyer who served as local counsel for the plaintiffs in the class action, said Wal-Mart's own pay records provided evidence that the employees were not compensated for breaks. He said an audit of Wal-Mart's time-clock reports indicated that more than 60 percent of the employees had missed breaks or took shorter meal periods than they were entitled to. The auditors found electronic evidence showing that workers were working at cash registers or computer-based learning terminals at the same time that they were shown clocked out on the time clock.

"Also, their badge numbers were clocked on to [inventory control] de vices while they were supposedly on break," Donovan said.

Wal-Mart had a written policy mandating that all employees take rest and meal breaks. It required that all "work associates" receive one paid 15-minute break during any three-hour work period and one unpaid 30-minute break over a six-hour work period.

Wal-Mart offered testimony to explain why its electronic time records were inaccurate, but a determination of the witnesses' credibility was not the focus of a certification decision, Judge Mark Bernstein said in the opinion. It "will undoubtedly be an issue for jury determination at trial," he noted.

Wal-Mart also argued that the lead plaintiffs were "disgruntled employees" who were not representative of the class. Again, the judge disagreed.

"The computer records belie this contention; the analysis reveals significant break time lost. Regardless of how disgruntled they or other employees who believe they have been forced to work off the clock without pay may be, their interests are sufficiently aligned with the interest of the entire class."

Wal-Mart says its policy is to pay associates for every minute they work.

"Any manager who requires or permits off-the-clock work, or who fails to comply with applicable laws or policies governing hourly associates' meal and rest breaks, will be subject to disciplinary action, up to and including termination," Thornton said. "The company makes significant efforts to ensure compliance with its policies in this regard, including, for example, the use of technology that prevents cashiers from working on their registers when they are supposed to be taking meal breaks."

Donovan said this is the perfect type of case for a class action. "No one employee would be able to get justice for his or her claim because the number of dollars at stake in terms of shorted breaks and missed meals isn't emotionally or economically significant enough for anybody to pursue that claim individually," he said.