Lawyers for employers and employees agree: A leaked Wal-Mart memo proposing ways to cut healthcare costs could mean big legal trouble for the world's largest retailer.
Even if the company accepts none of the questionable suggestions it contains, the memo will furnish plaintiffs' attorneys with evidence to argue that Wal-Mart Stores Inc. discriminates against some workers, said Jeffrey Winikow, a Century City employee-rights lawyer. "The memo is a cesspool of legal violations."
The memo -- acquired and publicized this week by Wal-Mart Watch, a nonprofit group allied with labor unions -- virtually guarantees that the retailer, which already is fighting class-action lawsuits over its hiring and promotion practices, will face a slew of new discrimination claims, Winikow said.
Writing to Wal-Mart's board of directors in advance of their meeting next month, Executive Vice President of Benefits Susan Chambers proposed that benefits be redesigned to attract a "healthier, more productive workforce," potentially saving $670 million by 2011.
Chambers suggested offering savings on healthy foods and other benefits that appealed to healthy workers. She also said all jobs could be redefined "to include some physical activity (e.g. all cashiers do some cart gathering.)"
"These moves would also dissuade unhealthy people from coming to work at Wal-Mart," she wrote.
Employment rules that discriminate against workers on the basis of age or a permanent physical disability run afoul of federal and state laws, whether the discrimination is intentional or not. The laws usually require employers to make reasonable accommodations for a worker's physical disabilities, including chronic medical conditions such as diabetes or heart disease.
Wal-Mart spokeswoman Sarah Clark said the company's intent "was not to dissuade unhealthy people to apply for jobs at Wal-Mart.... It was to provide programs to our associates that help them live longer or healthier lives."
Lawyers point out that not all discrimination is illegal. For example, cities may require firefighters to be strong enough to rescue an injured person.
But if an employer adds unrelated activities to a job for the goal of screening out protected classes, that could be a problem, said Brad Seligman, an Oakland-based lawyer representing women in a class-action gender bias suit against Wal-Mart.
