Seyfarth Shaw LLP | www.seyfarth.com Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) 113 tasks.564 Ultimately, “an employer bears the burden of showing compliance is infeasible because no suitable seating exists.”565 These cases illlustrate a new trend in California wage and hour lawsuits.566 Though they have favored lawsuits exploiting the “suitable seats” requirement in Wage Order 7-2001, plaintiffs’ counsel likely will attempt to create private causes of action for similar Wage Order provisions. Courts have differed on whether seating claims are good candidates for class treatment.567 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.568 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 564 Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (2016) (holding that the phrase “nature of work”—in the wage order stating that working employees shall be provided with suitable seats “when the nature of the work reasonably permits the use of seats”—refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed). 565 Id. at 24. 566 See also Garvey v. Kmart Corp., 2012 WL 6599534 (N.D. Cal. Dec. 18, 2012), the first of the “seating” cases to go to trial. There, the plaintiff alleged that Kmart failed to provide suitable seating for checkout cashiers in violation of Labor Code § 1198 and Section 14(A) of Industrial Welfare Commission Wage Order 7-2001. The federal district court summarized its holding: “’All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats,’ according to the law in California. In this civil action, class counsel have failed to prove that the nature of the work reasonably permits the seating modification urged by counsel at trial. Possibly a different modification involving a lean-stool would be provable but this record does not support it.” Id. at *2. See also LaFace v. Ralphs Grocery Co., Los Angeles Superior Court Case No. BC632679 (March 20, 2020) where, in the first suitable seating case to go to trial since the California Supreme Court’s 2016 Kilby decision, a Los Angeles Superior Court judge found for Ralphs after a three-week bench trial. The trial court’s statement of decision ruled that the plaintiff failed to prove that her job could be reasonably performed while seated because cashiers “engage in continuous dynamic movement,” are “never idle,” and must be “active and busy at all times.” Further, the trial court found that Ralphs “met its burden to show that no suitable seat for the work exists” and provided “substantial evidence” in support of its position including the company’s own business judgment and a physical layout not conducive to seating. The trial court’s judgment in favor of Ralphs was recently affirmed on appeal. See LaFace v. Ralphs Grocery Co., 75 Cal. App. 5th 388, 400 (2022), review denied (May 11, 2022). 567 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. 568 Williams v. Superior Court, 3 Cal. 5th 531 (2017).
RkJQdWJsaXNoZXIy OTkwMTQ4