88 Litigating CA Wage & Hour and Labor Code Class Actions (22nd Edition) Seyfarth Shaw LLP | www.seyfarth.com private causes of action for similar Wage Order provisions. Courts have differed on whether seating claims are good candidates for class treatment.526 H. Class-Like Discovery for PAGA Claims In 2017, the California Supreme Court issued a ruling that rendered PAGA even more onerous for employers, this time in connection with the discovery process. In Williams v. Superior Court, an employee who worked for a large retail chain at a single location brought a representative PAGA action on behalf of employees statewide for alleged wage and hour violations.527 During discovery, the plaintiff sought personal contact information for tens of thousands of employees at all of defendant’s California stores. The trial court sustained the defendant’s objections to this discovery, holding that the employee had failed to show good cause for the information sought. The trial court limited discovery to the store where the plaintiff worked, and conditioned broader statewide discovery on the plaintiff sitting for his deposition and making a showing that his statewide representative claims had some merit. The Court of Appeal affirmed this decision, only to be overturned by the California Supreme Court. The Supreme Court rejected the defendant’s arguments that the discovery was overly broad, unduly burdensome, and violated the privacy rights of other employees. According to the Supreme Court, the rules for PAGA discovery are the same as those applied in class actions, where plaintiffs can obtain names and contact information of other potentially aggrieved employees in order to gather information to support their claims. The Supreme Court further reasoned that producing the contact information was not unduly burdensome because the employer maintained the information centrally. Finally, the Supreme Court affirmed prior holdings that courts cannot deny discovery of contact information in a class or representative action. Instead, lower courts should create privacy protections that still allow for discovery of the information, such as by mailing privacy notices to employees and giving them the chance to affirmatively opt out of the disclosure of their contact information. Williams was a huge victory for the plaintiffs’ bar. Plaintiffs’ counsel assert that Williams permits a single plaintiff, who worked in a single position and a single location, to bring PAGA claims on behalf of thousands of employees who performed dozens of different jobs in locations across California. Based on vague allegations of Labor Code violations that the plaintiff claims to have experienced in one specific job and work location, the plaintiff can require the defendant to respond to expensive and burdensome discovery, even where the plaintiff’s allegations might not apply to other categories of workers or to other work locations. And worse yet, because PAGA actions are not subject to class certification requirements, defendants cannot move to deny class certification in an effort to avoid these burdens. One can only hope that the trial courts will be alert to 526 In Hall v. Rite Aid Corp., San Diego Superior Court Case No. 37-2009-00087938-CU-OE-CTL (Oct. 11, 2012), the trial court granted Rite Aid’s motion to decertify a class of cashiers and clerks, concluding that individualized issues. predominated as to whether the “nature of the work” of a cashier reasonably permitted the use of a suitable seat. The court concluded that the Rite Aid cashier job must be viewed as a whole, but the evidence demonstrated that an improper individual-by-individual analysis was required. But in Garvey v. Kmart Corp., 2012 WL 6599534 (N.D. Cal. Aug. 13, 2013), the federal district court found a seating claim by cashiers to be a good fit for class treatment, at least as to a single store. 527 Williams v. Superior Court, 3 Cal. 5th 531 (2017).
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