By Jon Steingart

Wyndham Vacation Resorts Inc. and Wyndham Vacation Ownership Inc. edited down time cards to deprive some 150 sales representatives an average of 12 hours of overtime pay per week over a three-year period, a federal judge ruled.

Magistrate Judge C. Clifford Shirley Jr. of the U.S. District Court for the Eastern District of Tennessee ruled in favor of the 156 sales reps in the class lawsuit, but left it up to the two sides to work out the amount of pay due.

The sales reps, who earned minimum wage plus commission, succeeded in their lawsuit, but lots of other low-paid workers feel deterred from speaking up, Laura Huizar, a staff attorney in the National Employment Law Project’s Washington office, told Bloomberg Law. “We hear from low-wage workers that there is real fear when it comes to coming forward,” she said. NELP is a worker advocacy organization.

“A lot of workers are staying silent because of the risks that come with speaking up. Employers will often fire a worker for complaining. They’ll demote workers to lower paid positions or less desirable positions,” she said. In light of the recent focus on immigration enforcement, fear of a call to customs officials to report an undocumented worker or undocumented family members is another concern, she added.

A Wyndham Vacation Ownership spokesperson declined to comment specifically on the company’s litigation. “We make every effort—in both policy and practice—to ensure a fair and equitable workplace, to follow all applicable laws, and remain committed to promoting our core values and ensuring the well-being of our associates at every level,” the spokesperson told Bloomberg Law by email.

A lawyer for the workers didn’t immediately respond to a request for comment.

Agency Enforcement, Unions

“It is incredibly hard, particularly for low-wage workers, to assert their rights in the workplace,” Veena Dubal, a professor at UC Hastings College of the Law in San Francisco, who represents low-wage workers, told Bloomberg Law. In addition to the likelihood of retaliation in the form of termination and blacklisting, “it’s really emotionally exhausting to have to prove that you were stolen from,” Dubal said.

Filing a lawsuit is one way workers who think they haven’t been paid correctly can speak up, but it might not be practical for everyone, Pronita Gupta, job quality director at the Center for Law and Social Policy, which advocates for policies to help low-wage workers, told Bloomberg Law. “To be made whole can take a long time and many low-wage workers just can’t afford that,” she said.

Labor standards enforcement agencies are another method to ensure workers are paid correctly, Gupta said. If agencies are given adequate resources, she said, they can take a strategic approach that targets industries where violations are more common, rather than reacting after a complaint comes in.

“If more labor enforcement agencies can take that approach, they can help a lot of low-wage workers who may not know their rights and may be too afraid to speak up,” Gupta said. “When there are labor agencies that are working in cooperation and in concert with community-based organizations, that’s one of the ways we can ensure workers are being justly served.”

Gupta further recommended giving workers a voice through traditional unions or other worker organizations. The groups can back workers who speak up and help deter or respond to retaliation that may occur as a result.

Internal Complaint Procedures

Employers should establish reporting channels and make it clear that employees can use them without worry, attorney Jonathan Segal, managing partner of the Duane Morris Institute, said. The institute provides training for human resources professionals and managers. Segal also is a Philadelphia-based partner in Duane Morris LLP’s employment, labor, benefits, and immigration practice group.

“Whether it be alleging that you’ve had your pay shaved, that you’ve been sexually harassed, or any other legal wrong, the complaint procedure is only as strong as the belief in the process,” he told Bloomberg Law.

“The policy on paper has to reflect the culture that neither engages in, nor tolerates, retaliation,” Segal said. “If the policy doesn’t reflect the culture, it’s meaningless.”

The Wyndham case is Pierce v. Wyndham Vacation Resorts, Inc., 2018 BL 29171, E.D. Tenn., No. 3:13-cv-00641, findings of fact, conclusions of law for plaintiffs 1/29/18.