Wal-Mart Surveillance of Protesters Criticized

By Allen Smith Dec 10, 2015
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Wal-Mart has come under fire for its surveillance of strikers during 2012 and 2013 protests after this form of employee tracking was unearthed recently in litigation against the retail giant.

The company allegedly enlisted Lockheed Martin as well as the FBI Joint Terrorism Task Force to keep close tabs on protesters, according to the Organization United for Respect at Wal-Mart (OUR Wal-Mart), a worker center advocating on behalf of employees at the company.

Wal-Mart used Lockheed Martin Wisdom, a predictive analytics tool that monitors social media content that can incite organized movements, Bloomberg reported.

Wal-Mart also “boasted [about its] activity with the FBI to track employees,” Dan Schlademan, co-director of OUR Wal-Mart, said in an interview. The FBI Joint Terrorism Task Force is composed of small cells of highly trained, locally based investigators, analysts and other specialists from dozens of U.S. law enforcement and intelligence agencies.

“On the one hand, the company says OUR Wal-Mart is not having an impact, but it also engages in huge resources” to monitor protesting employees, he remarked. Schlademan said this “speaks to how afraid the company is of the employees having a voice.”

Schlademan predicted that “it’s going to backfire to use heavy-handed tactics.”

Jaclyn Joines, a spokeswoman with Lockheed Martin, said, “We respect the relationships we have with our customers, and thus decline to answer questions about whether or not we work with specific commercial companies.”

Wal-Mart declined to comment.

Complaint Against OUR Wal-Mart

However, Worker Center Watch, which is dedicated to exposing organized labor’s abuse of the worker centers, said that after the OUR Wal-Mart protests on Black Friday in November 2012, the company filed an unfair labor complaint with the National Labor Relations Board (NLRB). Wal-Mart maintained that the United Food and Commercial Workers (UFCW) International Union was behind the actions taken by its subsidiary, OUR Wal-Mart.

On Jan. 31, 2013, the complaint was settled, with the UFCW pledging to the NLRB that it was not trying to unionize Wal-Mart workers and that it would end picketing for 60 days.

‘Ride for Respect’

Schlademan noted that in 2013, about 100 workers rode in “Ride for Respect” buses across the country for two weeks, picking up protesters along the way before converging on Bentonville, Ark., Wal-Mart’s corporate headquarters, to demonstrate at a shareholder meeting.

Following the one-day demonstration in Bentonville, 20 of the protesters were fired and 50 were disciplined, he said.

Wal-Mart “treated employees like they were the enemy,” he added.

OUR Wal-Mart sued Wal-Mart, alleging unfair labor practices. Schlademan said that the NLRB has not yet ruled on the litigation.

Surveillance Is Common

Having surveillance around a company’s plant gates for protection is lawful, according to Nelson Lichtenstein, director of the Center for the Study of Work, Labor and Democracy at the University of California, Santa Barbara, and author of TheRetail Revolution: How Wal-Mart Created a Brave New World of Business (Picador, 2010).

However, “Surveillance of employees engaged in protected and concerted activity such as a strike generally is unlawful interference with the employees’ rights under Section 7 of the NLRA [National Labor Relations Act]. Surveillance implies a deliberate observation of employee activity by management, often involving recording of the identities of the participants,” stated Phillip Schreiber, an attorney with Holland & Knight in Chicago. That said—“An employer engaged in its established practices that happen to allow management the ability to observe protected and concerted activity likely is not unlawful, so long as management does not actually create the impression that it is engaged in active surveillance of the employees.”

“Most illegal surveillance is unknown to workers, but it is all over the place because most workplaces have it built in under the guise of security, with badges and key cards that track where employees are, or when employees log in and out of their work stations,” said Kate Bronfenbrenner, a senior lecturer at the Worker Institute and director of labor education research at the Cornell University School of Industrial and Labor Relations. “Employer surveillance of workers to identify concerted or union activity is illegal” under the NLRA, she added.

Surveillance is very common, Lichtenstein agreed. “If companies were willing to accept the spirit of labor law and remain truly neutral, none of this would be happening.”

But he called enlisting the FBI Joint Terrorism Task Force to gather intelligence on protests—if it happened— “reprehensible and illegal because forming a union is not terrorism.”

While firing employees who have gone on strike is illegal, Lichtenstein said it is “easy to get around because you just claim the firing is for something other than participating in ‘concerted activity,’ which is protected by labor law.”

The bottom line, Lichtenstein concluded, is that “Wal-Mart does not want its employees to form a union.”

More Changes Sought at Wal-Mart

This year, Wal-Mart raised its minimum wage to $9 per hour and will raise it again to $10 in 2016.

The federal minimum wage is $7.25. Some states’ and localities’ minimum wage exceeds this amount, and some cities, such as Seattle, have passed laws that will gradually raise their minimum wage to $15 an hour.

Schlademan said that OUR Wal-Mart will continue to press for more changes including:

  • A minimum wage of $15 per hour.
  • Full-time work for more employees.
  • Predictable scheduling.

The “Fast for $15” at Wal-Mart on this past Black Friday was “a nationwide call by striking OUR Wal-Mart members and their community allies to end substandard working conditions in Wal-Mart,” Bronfenbrenner said.

Wal-Mart may claim it’s not been affected by the worker center’s protests, but its changes show it has, according to Schlademan, who said the increased wages are “steps in the right direction. But there’s a lot more work to do.”

And, he noted, OUR Wal-Mart doesn’t know if surveillance by the company continues.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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