California Court of Appeal Holds Alleged Seating Violations Are Suitable For Class Treatment Where Plaintiff Alleged A Common Policy Applying To All Similarly Situated Employees

As we previously reported, most employers in California are subject to the workplace seating requirements contained in the Industrial Welfare Commission Wage Orders, which regulate wages, hours, and working conditions in specified industries and as to specified occupations. Wage Orders 1-13 and 15 all contain the following seating requirements:

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.

(B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, 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.

Those requirements are somewhat relaxed as to employees employed in agricultural occupations and as to certain occupations in the construction, drilling, logging, and mining industries. Wage Order 14, which governs persons employed in an agricultural occupation, requires that “[w]hen the nature of the work reasonably permits the use of seats, suitable seats shall be provided for employees working on or at a machine.” Wage Order 16, which governs certain occupations in the construction, drilling, logging, and mining industries, states, “[w]here practicable and consistent with applicable industry-wide standards, all working employees shall be provided with suitable seats when the nature of the process and the work performed reasonably permits the use of seats.”

The penalties for seating violations can be very substantial. As we previously reported here, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, the California Court of Appeal held an employee may seek California Labor Code Private Attorneys General Act of 2004 (“PAGA”) penalties for alleged violations of an IWC wage order requirement that employers provide employees suitable seats. The court rejected the employer’s argument that PAGA penalties are available only for violations of wage payment laws and concluded such penalties are available for violation of non-wage labor standards contained in the IWC’s wage orders. The plaintiff in the case, Eugenia Bright, alleged 99¢ Only Stores violated Section 14 of Wage Order 7-2001 stating all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use. She sought civil penalties under Labor Code section 1198, stating the employment of any employee “under conditions prohibited by” IWC wage orders is unlawful. The court held civil penalties available under PAGA, consisting of $100 per each “aggrieved employee” per pay period for the first violation and $200 per “aggrieved” employee per pay period for each subsequent violation, could be recovered because no other penalties for violating the seating requirements were provided by law. As we previously reported here, In Home Depot U.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210, which also involved the provisions of Wage Order 7-2001 stating the all working employees “shall be provided with suitable seats when the nature of the work reasonably permits” such use, the California Court of Appeal again held PAGA penalties can be awarded for violations of IWC wage orders. In so holding, the court rejected Home Depot’s contention that PAGA penalties are not available for violation of the wage order because PAGA penalties are available for violations of the Labor Code “except those for which a civil penalty is specifically provided,” and the wage order contains its own civil penalty provisions (in lesser amounts than those provided by PAGA). In response to that argument, the court held Wage Order 7-2001 does not specifically provide a civil penalty for violation of the wage order’s seating requirements. Further, the court noted that the civil penalty provision of the wage order states its penalties are “‘[i]n addition to any other civil penalties provided by law,’” which the court interprets to mean the the wage order “does not purport to establish a comprehensive scheme of penalties for violations of the wage order.”

In Hall v. Rite Aid Corporation, a decision certified for publication on May 16, 2014, the California Court of Appeal held claims for PAGA penalties based on Rite Aid’s alleged policy of not providing cashiers seats is suitable for class wide treatment and held the trial court committed reversible error when it decertified the proposed class based on Rite Aid’s argument that the individual circumstances of the chain’s cashiers were so varied that the claims were not suitable for class treatment. In light of the increasingly frequency of class action lawsuits alleging seating requirement violations and in light of the Court of Appeal’s decision in Hall v. Rite Aid, it is especially important that employers make certain they are in compliance with the seating requirements contained in the IWC wage orders. Such compliance review should include in most instances looking at both whether the nature of an employee’s work would reasonably permit the use of a seat while working and whether the nature of the work would reasonably permit the employee to use a seat when not engaged in active duties during the workday. In addition to a compliance review, employers should adopt written policies that comply with the IWC wage order seating requirements. The penalties and attorney’s fees can be quite substantial, and we believe most courts would conclude that the nature of the work reasonably permits the use of seats in many instances.

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