You might want to sit down before reading this….
There’s a new twist in the California wage and hour class action game — seating cases. In recent months, two California cases have upheld suits against employers for failing to provide adequate seating for employees.
In Bright v. 99 Cents Only Stores, plaintiffs sought penalties (and attorneys’ fees) for the employer’s failure to provide seating to cashiers. Plaintiffs cited wage orders issued by the state Department of Labor, which state “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Even those who can’t work sitting down are covered in the wage orders: “When [such] employees are not engaged in the active duties of their employment . . . , an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.” Because 99 Cents Only Stores didn’t provide that seating, plaintiffs sought penalties under California’s Private Attorney’s General Act. The court of appeal let the case proceed, holding essentially that violations of the administrative wage orders constituted violations of the state labor codes.
Another court of appeal reached the same conclusion in Home Depot v. Superior Court. The California Supreme Court declined to take either of the cases, and also declined to depublish the opinions. So these are the law of the land, pending further action by the legislature or Supreme Court.
Since those cases came out, many other employers have reportedly been targeted for seating cases, including notables such as Safeway, CVS, JC Penney, Bank of America, and most recently GAP and Banana Republic. The penalties involved can add up for a large employer — $4,800 per affected employee per year, which is nothing to sneeze at for a company employing tens of thousands of employees. And, of course, it doesn’t include attorneys’ fees.
More importantly, as the Bright court noted, there are a number of other requirements in the wage orders to which the same analysis would arguably apply, ranging from employer record keeping, to temperature in the workplace, to provision of change rooms, to elevator access. It would not be at all surprising to see new cases cropping up seeking penalties for violations in these areas as well.
Talk about a real pain in the @$$!