310 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 321 Id. at 880 (“[W]e reject Loews’s request that we apply our decision only prospectively.”). 322 Naranjo v. Spectrum Sec. Servs., Inc., 40 Cal. App. 5th 444 (2019), review granted, No. S258966 (Cal. Jan. 2, 2020). 323 Wage Orders § 14 (“(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.”). 324 Lab. Code § 1198 (“The employment of any employee … under conditions of labor prohibited by the order is unlawful.”). 325 No. 04-431310 (S.F. Sup. Ct. 2005). 326 Currie-White v. Blockbuster Inc., 2009 WL 2413451, at *3 (N.D. Cal. Aug. 15, 2009) (dismissing PAGA claim based on suitable seating but with leave to amend; “[P]laintiff has failed to plead any facts to support her conclusory allegation that ‘the nature of cashier work reasonably permits the use of seats’ …The Court, however, will afford plaintiff an opportunity to file an amended complaint curing this deficiency.”). 327 Bright v. 99 Cents Only Stores, Inc., 189 Cal. App. 4th 1472, 1481 (2010) (reversing dismissal of PAGA claim based on suitable seating; “[W]e conclude section 2699, subdivision (f)’s civil penalties are available for a violation of section 1198, based on failure to comply with Wage Order No. 7, subdivision 14.”); Home Depot USA v. Superior Ct., 191 Cal. App. 4th 210 (2010). 328 Green v. Bank of Am. NA, 512 Fed. App’x 665, 666 (9th Cir. 2013) (reversing dismissal of complaint for failure to allege that plaintiff had requested a seat; “The district court erred when it assumed a requirement, not in the text of the Wage Order, that employees must request seating before it is offered.”). 329 Kilby v. CVS Pharmacy, Inc., 739 F.3d 1192, 1193-94 (9th Cir. 2013). 330 Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (2016). 331 Id. at 17-18. 332 Id. at 21-22. 333 Id. at 20-21. 334 Id. at 21-23. 335 Id. at 24 (“An employer seeking to be excused from the requirement bears the burden of showing compliance is infeasible because no suitable seating exists.”). 336 Id. at 19. 337 LaFace v. Ralphs Grocery Co., 75 Cal. App. 5th 388 (2022). LaFace also held that there is no right to a jury trial for PAGA claims: “On balance, we cannot conclude that such an action [under PAGA] has a pre-1850 common law analog that would call for the right to a jury trial under the California Constitution.” See § 5.15.3. 338 Id. at *12. 339 Id. at *12 (“Despite these expectations, employees sometimes did not engage in their expected job duties. However, their decision to remain at their checkstands rather than perform their other expected tasks does not constitute a lull in the operation of those other duties.”). 340 Canela v. Costco Wholesale Corp., No. 2013-1-cv-248813 (Santa Clara Sup. Ct. 2023). 341 Luckett v. McDonald's Rests. of Cal., Inc., No. B317481, 2023 WL 8290252 (Cal. Ct. App. Nov. 30, 2023). 342 Fobroy v. Video Only, Inc., No. C-13-4083 EMC, 2014 WL 6306708, at *6 (N.D. Cal. Nov. 14, 2014) (granting summary judgment against Wage Order section 15 temperature claims for a failure to “introduce evidence of deviation from applicable ‘industry wide-standards’”). 343 8 Cal. Code Regs. § 339. 344 See Department of Industrial Relations Heat Illness Prevention in Indoor Places of Employment summary. https://www.dir.ca.gov/oshsb/Indoor-Heat.html (last visited Mar. 21, 2024); Cal/OSHA Heat Prevention Guidance and Resources, https://www.dir.ca.gov/dosh/heatillnessinfo.html (last visited Aug. 5, 2024). 345 E.g., Hudgins v. Neiman-Marcus Grp., Inc., 34 Cal. App. 4th 1109 (1995) (unidentifiable returns of merchandise not attributed to sales made by particular employee could not be deducted from commissions); Quillian v. Lion Oil Co., 96 Cal. App. 3d 156 (1979) (unlawful to determine bonus payments by deducting amount of cash shortages for sales). See also Sciborski v. Pac. Bell Directory, 205 Cal. App. 4th 1152 (2012) (unlawful to unilaterally declare commission was unearned and use self-help to deduct funds from wages already paid; although employers and employees may agree on certain conditions to a sales commission being earned, permitting an employer to recoup advances if the conditions are not satisfied, those conditions must be clearly expressed, generally in writing, and must relate to the sale and cannot merely serve as a basis to shift the employer’s cost of doing business to the employee). 346 DLSE Enforcement Policies and Interpretations Manual §§ 11.2.1-11.2.3 (2002). As the DLSE has stated in an opinion letter: “[Labor Code provisions] announce the long-standing policy of the State of California in regard to an employer’s obligation to pay all costs his employee expends or loses in carrying out the duties of the employment. … As is clear from the [Labor Code], under the California law, an employer may not ‘pass through’ the normal costs of operating a business to the employee he hires. Debiting an employee’s earned wages to cover a normal operating expense of the employer is not allowed in California.” DLSE Opinion Letter 2000.08.01 at 4. 347 57 Cal. 2d 319 (1962). 348 Lab. Code § 224 (arguably suggesting that any valid deduction must be authorized by state or federal law or expressly authorized in writing by the employee, or in a collective bargaining agreement, to cover health or pension plan payments). Two cases indirectly support
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