Workers Don’t Stand a Chance When the Supreme Court Rules that Greed is Good

Close your eyes and pretend you’re having the worst nightmare of your life. You work at Walmart, making their median salary (half of Walmart workers earn more than you, half earn less) of $19,177. You’ve just discovered you would have to work for 1,188 years to earn the $22.2 million that CEO Doug McMillon made in 2017. If that realization isn’t depressing enough, prepare to be depressed anew. Even your measly pittance and that of other workers isn’t safe from the thievery of your employers.

Wage theft is part of the business plan at many of the richest corporations in the U.S. One example — forcing workers to perform off the clock work, like retrieving shopping carts from parking lots. This gross abuse was featured in a 2002 front page headline in The New York Times — “Suits say Walmart Forces Workers to Toil off the Clock.” Other acts of piracy— classifying workers as management to avoid paying them overtime, failing to reimburse workers for required clothing purchases, stealing workers’ tips, refusing to pay workers for meal and rest breaks, paying wages late or sometimes not at all. New indignities are rolling out of corporate HR departments as fast as old ones are discarded.  A virtual Caligari’s cabinet-full of larcenous practices.

In anything-goes-America, corporations bloated with profits buy protection by coughing up huge amounts of campaign contributions for their “friends“ in Congress and the White House. At the same times, this outflow is more than compensated for by looting both customers and their own employees. Sometimes the larceny is so widespread and outrageous that it catches the eye of even the most lackadaisical federal or state regulator.

What species of corporate venality could explain the rape of their own employees’ pay?  Imminent bankruptcy? Among the twelve most heavily penalized companies, ten had profits of over $1 billion in their latest fiscal year. Three —AT&T, J.P. Morgan Chase and Wells Fargo had more than $20 billion in annual profits. Their CEOs were likewise living high off the hog taking home over (in some cases way over) $20 million in annual salary. At the same time, their employees could look forward to working for 360 years (at AT&T), 364 years (at J.P. Morgan Chase) and a mere 291 years (at Wells Fargo) to make as much as these CEOs bagged in one year.

To judge by the payouts from class action worker lawsuits and state (only eight states rigorously enforce wage theft laws and report findings) and federal administrative actions, corporate thievery is on a roll, with 4,220 cases against large corporations resulting in $9.2 billion in penalties. Sounds like a lot, right? Figures can be deceiving. Three corporations, AT&T, J.P. Morgan Chase and Wells Fargo alone, had over $76 billion in profits last year and have paid a total of $505 million dollars in penalties since 2000—a tiny, tiny fraction of their 2017 profits and spread over seventeen year, virtually nothing. Who said crime doesn’t pay?

To make matters worse, there’s many more greedy corporations in exceptionally crooked America with their sticky fingers in workers’ paychecks than get reported. In many cases, large corporations use their political muscle to petition federal and state courts to keep the lid on the cases they lose. Researchers have dug up 127 cases with sealed settlements involving such bad actors as AT&T, Home Depot, Verizon, Comcast, Loews, and Best Buy.

Want to know the biggest cheater? At the top of the Wall of Shame is that serial offender, predatory employer, and long-time grifter Walmart. Far ahead of the pack of other thieving corporations, Walmart has managed to chalk up over $1.4 billion in penalties and settlements for various forms of wage theft. The company motto: if there’s a way we haven’t found yet to screw more money out of our employees, count on us, we’ll find it. There’s not a dodgy maneuver known to mankind that Walmart hasn’t embraced — from paying women less than men for the same jobs and locking out women and minorities from top management posts to forcing hourly workers to work “off the clock” (unpaid) cleaning out dressing rooms and hundreds of other “housekeeping” chores.

Not far behind Walmart in sleazy business practices are a few other well-known fat cat corporations and financial behemoths. Fed Ex is number two on the list with over a half-billion in penalties.  Not to be left out, Fed Ex’s evil twin UPS comes in at number eight of the heaviest penalized corporations having managed to amass $138 million in penalties.

But when it comes to finding rotten apples in the barrel the scalawags at U.S banks and financial institutions take the cake. Fresh off destroying the economy in 2008, making 11 million Americans homeless and cleaning out the pension funds of countless others, like Phoenix birds rising from the ashes, they’re back, clutching their get-out-of-jail-free cards. The only difference? They’re bigger and badder than ever. Taking the third, fourth and fifth places (a not-so-distant cousin, State Farm Insurance, is sixth) on the hit parade of heavily penalized junk corporations are Bank of America who never saw a dirty deal they didn’t chase ($382 million in fines and penalties), Wells Fargo, an egalitarian colossus cheating customers and workers alike ($205 million in penalties). Finally, what list of malefactors would be complete without the inclusion of J.P. Morgan Chase (who can forget CEO Jamie Dimon testifying in front of congress: “There was no hiding, no lying, there was no bullshitting. Period” in the face of admitting to securities fraud, accepting penalties of over $1 billion and suffering the loss of two prominent traders who face potentially long prison terms.).

Other notables making an appearance on the top ten list of most heavily penalized institutions, scammers extraordinaire AT&T (penalties of $139 million), Tenet Healthcare, part of the medical-industrial corruption complex (penalties of $128 million), and ABM, a low-profile but nonetheless shady facilities management operation (penalties of $129 million). To underscore their criminogenic business plan, here’s a real-life account from a former Wells Fargo employee: “aggressive sales quotas based on exploiting vulnerable customers, forced me into 12 hour shifts with no breaks and no food allowed and threats of withholding my pay check if I didn’t sign off on working extra hours for free…”

Although this skullduggery is global hitting low wage workers (cashiers, cooks, security guards), higher paid but still relatively low wage workers (delivery drivers) and high paid professional workers (nurses, pharmacists, stockholders and financial analysts), these wage thefts cabals have favorite victims. Not surprisingly, women workers get dumped on more often than not (in the best of circumstances they still receive 80¢ for every $1.00 a man makes in the same positions). Of the ten companies who regularly stiff their employees, a whopping eight (80%) of them employ large numbers of women. The other most sinned against worker class —minorities. Fifty percent of the top ten Hall of Shame companies employ more Blacks (20%) and Latinos (25%) than their percentage in the entire U.S. workforce where Blacks are 12% and Latinos 17%.

Not a secret anymore — voluminous reports testifying to the spread of wage theft in virtually every U.S. industry classification exist in the public domain. Everywhere that is except in the Supreme Court reading room. Having long ago wandered away from a tradition of impartial, non-political jurisprudence, where the evidence determines the verdict (remembering Dred Scott in 1857 and Plessy v. Ferguson in 1896 perhaps America never had such a judicial system), the Court has instead devolved into two warring factions—conservative, right-leaning justices (4 or 5) facing off against more liberal (not progressive) left-leaning justices (4 or 5). In the last couple of years, Supreme Court rulings spotlight the political affiliations of the conservative majority and result in decisions with woeful outcomes.

That’s what happened on May 21. The Court bids its final adieu to impartial judicial review in a decision that The New York Times captured in a headline “Supreme Court Upholds Workplace Arbitration Contracts Barring Class Actions.”  Here’s what the decision requires. Let’s suppose you have been offered a position as a non-union employee but a condition of employment is an employment contract that binds you to an arbitration procedure to resolve disputes (including wage theft violations) and prohibits you from banding together with other workers in the same boat to launch a class action suit. Gone is the possibility of a collective voice on corporate malfeasance like wage theft, discrimination, sexual abuse, and a truckload of other violations.

How fair is an arbitration procedure run by a corporation? Judge for yourself. In mandatory arbitrations, corporations make the rules. The judge is liable to be your boss and the jury of “your peers” — usually a bunch of corporate attorneys working for —you guessed it —the corporation you are arbitrating against. The Court compounded the misery for workers by maintaining that arbitrations must be conducted on a case by case basis regardless of whether the violation affects more than one employee. Judge Gorsuch, his anti-labor bias on full display, “warned” that if workers were allowed to band together “The virtue Congress originally saw in arbitration, its speed and simplicity and inexpensiveness would be shorn away and arbitration would wind up looking like the litigation it was meant to displace. In case Justice Gorsuch hasn’t noticed, “inexpensiveness” is hardly a sine qua non”  for gangster corporations pulling in billions every year.

Justice Ruth Bader Ginsburg wasn’t burying that malarkey. “Egregiously wrong, she thundered from the bench “[The result of the decision] will be huge under-enforcement of federal and state statutes designed to advance the wellbeing of vulnerable workers.”

The repercussions of this decision are breathtaking and will very likely affect the future “well-being” of an estimated 85 million non-unionized workers. The number of employment contracts with mandatory arbitration clauses has skyrocketed from 2% of the non-unionized workforce in 1992 to 23% today giving corporations the green light to fatten their profits with wage theft, unpaid work rules, and other popular forms of corporate embezzlement. As a result of this decision count on that percentage to explode.

Add it all up and what do you get? A perfect stew of corporate aggrandizement at the expense of workers leaving them powerless in the face of an out-of-whack judicial system that outsources justice to corporate tribunals. In a society riven with inequality, where at last count 450 large corporations have been fined in excess of $1 million each for their crimes against their own workers, the highest court in the land said to its most sinned-against citizens—take a hike. Can even the pale echo of democracy which exists today in not-so-superpower-America survive when pay-to-play becomes business as usual in both politics and jurisprudence? A few more Supreme Court decisions in this vein and I wouldn’t bet the ranch on it.

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