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Suitable Seating Class Action Claims In California

Published by on November 12, 2012

Since 2009, California courts have been dealing with a wave of lawsuits directed at larger employers for not providing seats to clerks, tellers, and cashiers.  This week, in Garvey v. Kmart, the first trial in a suitable seating class action begins before a federal judge in the Northern District of California.  While this trial concerns […]

Since 2009, California courts have been dealing with a wave of lawsuits directed at larger employers for not providing seats to clerks, tellers, and cashiers.  This week, in Garvey v. Kmart, the first trial in a suitable seating class action begins before a federal judge in the Northern District of California.  While this trial concerns only one Kmart store with maximum penalties of about $500,000, counsel for plaintiff states that he “intends to use the case to test the manageability of statewide certification.”  More after the break.

In Garvey, the federal court denied Kmart’s motion for summary judgment, holding that disputed facts existed regarding the nature of plaintiff’s work.  However, in May, 2012, a federal judge in California’s Southern District granted summary judgment in favor of CVS in Kilby v. CVS Pharmacy, Inc. and held that CVS was not required to provide its cashiers with seats while operating cash registers.

Kilby was a former cashier at CVS who was terminated by CVS for job abandonment.  As a cashier, Kilby’s job duties required her to operate a cash register, straighten and stock shelves, organize the front of the sales counter, clean the register, vacuum, gather shopping carts, and handle trash.  Kilby filed a lawsuit on behalf of all California cashiers alleging that CVS violated section 14(A) of Wage Order 7-2001 when it failed to provide its cashiers with suitable seating while performing their job duties.  Kilby sought to recover penalties pursuant to the California Labor Code Private Attorney General Act of 2004 (“PAGA”) for the alleged failure of CVS to provide suitable seating.

Section 14(A) provides that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  In support of its motion for summary judgment, CVS argued that Section 14(A) does not apply to the cashier position because the “nature of the work” performed does not reasonably permit the use of a seat.   CVS argued that the “nature of the work” must take into account the nature of the employee’s job as a whole, factoring in the numerous duties that an employee may perform during a shift, to determine whether the “nature of the work” requires standing or reasonably permits the use of seats.   Kilby argued that the phrase “nature of work” is properly understood by referring to any particular duty that an employee performs.  Kilby argued that there was only one job duty at issue – operating a cash register – which is of such a nature that an employee could perform the work while seated.

In response, the district court held that based on the language of Section 14, the “nature of the work” must be considered in light of the individual’s entire range of assigned duties in order to determine whether the work permits the use of a seat or requires standing.  The court found that there was no dispute that many of the duties performed by the cashiers required the employee to stand (i.e. stocking, and cleaning).  CVS further argued that deference should be granted to its business judgment about its expectations that cashiers stand at cash registers because it wants to protect a certain image of customer service.   The court held that while CVS’s business judgment is not necessarily entitled to deference, its expectations of cashiers are relevant to the understanding of the nature of a cashier’s work.  The court held that CVS’s undisputed evidence supported its argument that it expected cashiers to perform the majority of their job duties without sitting and cashiers were trained to perform duties while standing.

Despite the decision in CVS, in August, 2012, a district court judge in San Jose certified a state-wide class action of Wal-Mart cashiers.  For more information about the status of suitable seating decisions in California, click here.

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