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California Court Rules State Law Allows Cashier Not Given Suitable Seating to Pursue Civil Penalty Claim

  • November 22, 2010

Employers in California may be at risk for significant penalties under California’s requirement that employees be provided with “suitable seating,” under a ruling of a state appeals court in Bright v. 99¢ Only Stores, No. B220016 (Cal. Ct. App. Nov. 12, 2010).  The case was brought under state Industrial Welfare Commission (“IWC”) Wage Order No. 7-2001(14), specifying the requirement, and the Labor Code’s Private Attorneys General Act (“PAGA”), which permits aggrieved employees to sue for civil penalties for a violation of the state Labor Code. 

The Suit

Eugina Bright was a cashier at 99¢ Only Stores.  She filed a class action against her employer, alleging violations of California law and the Wage Order by failing to provide her with a seat, although the nature of her work reasonably permitted the use of a seat.  She sought civil penalties under the PAGA for the violation. 

The Stores asked the trial court to dismiss the complaint, arguing that a violation of the Wage Order’s suitable seating requirement was not a violation of the law, and, even if it were, Bright could not recover penalties under the PAGA because the Wage Order had its own penalty provision.  The trial court agreed with the Stores and dismissed the complaint.  Bright appealed.

California Labor Law and Wage Order

The Labor Law (Section 1198) provides, in relevant part:

The 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 the authority of 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.”  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). 

Suitable Seating is a Condition of Labor Encompassed by Section 1198

The trial court determined that a failure to provide suitable seating is not a violation of Section 1198 because it is not a condition “prohibited” by the Wage Order.  Even if it were, the court continued, the Wage Order contains a civil penalty provision that restricts such penalties to cases where the employee was underpaid.  As Bright did not allege she was underpaid, the court dismissed the complaint.

The appeals court reversed.  It said that based on the plain meaning of Section 1198, the suitable seating requirement was a “condition of employment” and the failure to provide suitable seating constituted a violation of Section 1198.  The Court rejected the employer’s 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.” 

Availability of Civil Penalties under PAGA

The Court then examined whether Bright could recover penalties under the PAGA for the Section 1198 violation.  The statute 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.”

The Court said, “Nowhere in the Labor Code is a civil penalty specifically provided for violations of the suitable seating requirement incorporated in section 1198.”  It 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 PAGA allows a civil penalty for violations of Section 1198 based on the failure to comply with the Wage Order’s suitable seating requirement.

Implications for Employers

Employers, particularly retailers, should review their procedures concerning the use and availability of workplace seating for employees.  They should analyze employee job duties to make a reasonable business determination as to whether seats can be provided, particularly to store sales personnel and cashiers.  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.

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