California Employees, Take Your Seats

The big news in California class actions these days? It’s all about the bottom line, in more ways than one: Two large employers (Home Depot and 99 Cent Only Stores) have been sued for failing to provide suitable seating for their employees. According to two California appellate courts, this violates California’s wage order for mercantile employees and the state Labor Code. It also gives rise to civil penalties under California’s Private Attorney General Act (PAGA), which provides a separate penalty for each aggrieved employee, for each pay period in which the violation took place. Although a winning plaintiff has to share these penalties with the state’s labor department, they could still add up to a nice chunk of change. When you factor in that PAGA also provides for attorney fees and costs, these start to look like fairly lucrative cases.

The wage order in question (7-2001) says the following:

14. SEATS
(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.

This wage order applies only to mercantile employees, but identical language appears in the wage orders that apply to different industries, including manufacturing, personal services, and professional and technical services.

I’m fairly certain reactions to this development are going to divide pretty neatly, on either side of the bright line labeled “retail experience.” My job history working in bookstores (remember them?) puts me firmly in the “pull up a chair” camp. Every store I worked in had a limited number of stools; although we could mostly agree on when we took breaks, what music to listen to, who had to throw out the shoplifter, and where everyone could smoke (it was a long time ago), we fought over those stools like nobody’s business. With more of these lawsuits springing up every week in almost every industry, it’s time for California employers to provide some rest for the weary.