California Supreme Court Denies Review Of Decision Holding PAGA Penalties Are Available For Seating Requirement Violations

As we previously reported here and here, two recent decisions of the California Court of Appeal hold an employee may seek Private Attorney General Act ("PAGA") penalties for alleged violations of an Industrial Welfare Commission ("IWC") wage order requirement that employers provide employees suitable seats in the workplace when the nature of the work reasonably permits the use of seats. For example, in Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472, 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.

This week, during the California Supreme Court's (usually) weekly conference, the court declined the petition for review of the Court of Appeal's decision in Bright v. 99¢ Only Stores. Review by the California Supreme Court is nearly always discretionary, meaning the court can simply decline to review a lower court decision if it chooses to within its discretion.

Now that the Supreme Court has declined review of Bright v. 99¢ Only Stores, it is especially important that employers make certain they are in compliance with the seating requirements contained in the IWC wage orders. The penalties 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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