California Employers Take a Seat -- Employees Can Pursue Penalty Claims Under Private Attorney General Act for their Failure to Provide Suitable Seating, Court of Appeal Rules
California employers who fail to provide “suitable seating” to employees as required by Industrial Welfare Commission (“IWC”) Wage Order No. 7-2001(14) could be subjected to significant penalties under the California Labor Code’s Private Attorneys General Act (“PAGA”), according to the California Court of Appeals. Bright v. 99¢ Only Stores, No. 220016 (Cal. Ct. App. Nov. 12, 2010). Reversing the dismissal of a class action by retail cashiers for Labor Code violations and for penalties under the PAGA, the Court ruled that the employees could pursue their claims related to their employers’ failure to provide “suitable seats” to them. The Court’s decision to allow the class action to proceed could trigger a new wave of costly litigation, particularly against retailers, whose sales employees and cashiers rarely sit down – these employees are too busy assisting or approaching customers, merchandising, conducting sales transactions, reviewing inventory and the like. Employers who encourage such activity may inadvertently find themselves faced with substantial liability.
Eugina Bright (“Bright”) filed a class action against 99¢ Only Stores (the “Stores”) where she worked as a cashier. Bright alleged that the Stores violated Section 1198 of the Labor Code and Wage Order No. 7-2001(14) by failing to provide her with a seat, although the nature of her work reasonably permitted the use of a seat. Bright sought civil penalties under the PAGA for the violation of the suitable seating requirement. The Stores asked the trial court to dismiss the complaint and argued that a violation of the suitable seating requirement was not a violation of Section 1198, and, even if it were, Bright could not recover penalties under the PAGA because the applicable Wage Order had its own penalty provision. The trial court agreed with the Stores, dismissed the complaint, and Bright appealed.
On appeal, the Court first reviewed the language of Section 1198 which provides, in relevant part, that “[t]he maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.” Under Section 1198, the IWC adopted Wage Order No. 7-2001 to address, among other things, the “standard conditions of employment for employees in this state.” Specifically, the Wage Order provides that all employees “shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” IWC Wage Order No. 4-2001(14)(A). Based on the plain meaning of Section 1198, the Court concluded that the suitable seating requirement was a “condition of employment;” thus, the failure to provide suitable seating constituted a violation of Section 1198. In so ruling, the Court rejected the Stores’ contention that violations only occurred where “prohibitory” language was used in the statute, such as the words, “shall not.” The Court found that the Stores’ interpretation was inconsistent with the “the remedial purpose of the statute.” Accordingly, the Court concluded that a violation of the Wage Order’s requirements regarding suitable seating constituted a violation of Section 1198.
The Court then examined whether Bright could recover penalties under the PAGA, Section 2699(f) of the California Labor Code, for the violation under Section 1198. To answer the question, the Court examined the statute’s language which provides a penalty of $100 for each aggrieved employee per pay period for the first violation and $200 per employee per pay period for each subsequent violation, for “all provisions of this code except those for which a civil penalty is specifically provided.” Bright argued that Section 1198 contained no penalty provision; therefore, the PAGA controlled. On the other hand, the Stores argued that the Wage Order included a penalty provision; therefore, the PAGA did not apply. Siding with Bright, the Court observed that “[n]owhere in the Labor Code is a civil penalty specifically provided for violations of the suitable seating requirement incorporated in section 1198.” The Court noted that the penalties provided in the Wage Order were “in addition to other civil penalties,” and thus were not an exclusive remedy. Accordingly, the Court found that Section 2699(f) allowed for a civil penalty for violations of section 1198 based on failure to comply with the suitable seating requirement.
In light of this decision, employers, particularly retailers, should review their procedures concerning the use and availability of seats for employees in the workplace. Employers should analyze employee job duties and make a reasonable business determination as to whether or not seats can be provided to sales personnel and cashiers. In conducting this assessment, employers should remember to include in their assessment any reasonable accommodations offered to disabled employees -- offering seats as a form of reasonable accommodation suggests that they do not interfere with the employees’ performance. Jackson Lewis attorneys are available to answer questions regarding these issues and advise employers regarding strategies for reducing the chances of facing lawsuits over seating requirements and costly penalties.
