112 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com The first case to reach the California Court of Appeal asserting such a theory was Bright v. 99¢ Only Stores.554 Bright filed a putative class action alleging that her employer violated a requirement in Wage Order 7-2001555 to provide employees with “suitable seats” where the nature of the work reasonably permits their use. Bright argued that 99¢ Only Stores, by violating the Wage Order, also violated California Labor Code section 1198, entitling her to PAGA penalties under Section 2699(f).556 In response, 99¢ Only Stores demurred on two grounds: (1) that the violation of the Wage Order’s seating provision is not a violation of Section 1198, because it is not a “prohibited” condition of labor; and (2) that even if a violation of the seating provision was a violation of Section 1198, civil penalties under PAGA are not available because the Wage Order has its own penalty provision.557 The trial court sustained the demurrer.558 Bright appealed and the Court of Appeal, in a case of first impression, ruled in her favor, holding that the seating requirement in Wage Order 7-2001 is a condition of labor under Section 1198 and that the use of the word “prohibited” in the statute did not mean that the conduct had to be prohibited by the Wage Order for it to come within the statute’s protections.559 Moreover, the Court of Appeal held that the penalties provided for in Wage Order 7-2001 section 20 are, by the Wage Order’s own terms, nonexclusive—and because Section 1198 does not contain its own penalty provision, the penalty provision contained within PAGA applies.560 Shortly thereafter, another Court of Appeal panel reached the same result. Home Depot U.S.A., Inc. v. Superior Court561 agreed with Bright and held that PAGA provides employees with a private right of action to recover civil penalties for violations of the “suitable seats” requirement in Wage Order 72001.562 And in another appellate decision, validating a PAGA action for “suitable seats,” the Ninth Circuit held that an employee need not actually request a seat to be entitled to one.563 The California Supreme Court has clarified that suitable seating is required when the tasks performed at a particular location reasonably permit sitting, and the seat would not interfere with the performance of standing any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful. 554 Bright v. 99¢ Only Stores, 189 Cal. App. 4th 1472 (2010). 555 Wage Order 7-2001 applies to retail employers. 556 Bright, 189 Cal. App. 4th. at 1475. 557 See id. at 1476. 558 See id. 559 See id. at 1478-79. 560 See id. at 1481. 561 Home Depot U.S.A., Inc. v. Superior Court, 191 Cal. App. 4th 210 (2010). 562 Id. 563 Green v. Bank of Am., 512 Fed. App’x 665, 666 (9th Cir. 2013). The Ninth Circuit also held that it would be premature at an early stage of the litigation—when no facts of the case had been developed—to determine whether an award under PAGA was unjust.
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