By Maria Rodrieguez & Ben Gipson
Winston & Strawn
In recent months, plaintiffs’ lawyers in California have seized upon previously unused language in Wage Orders to bring class actions against employers for not providing seats for employees who are required to stand as part of their job. Most California Wage Orders have the following language:
(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.”
In recent months, several plaintiff-side employment firms have brought class actions against large retailers, including Home Depot, Target, and Costco, claiming they violated this wage order by not providing adequate seats to their cashiers.
These suits have been creatively pled to seek damages under California’s Private Attorney General Act (“PAGA”), which allows counsel to seek damages of $100 for each “aggrieved employee” per pay period for the initial violation, and $200 for each aggrieved employee per pay period for each subsequent violation. Of this penalty, the aggrieved employees receive 25 percent of the recovery, and the state Labor and Workforce Development Agency receives the remaining 75 percent. Plaintiffs’ counsel may also recover attorney’s fees, interest, and the costs of bringing the suit.
Several of these suits have been dismissed, but only one such suit was dismissed with prejudice. At the very least, these suits have begun to generate legal fees and are creating incentives to settle baseless claims.
Given the potential for class actions based on not providing employees with a seat, employers should act now to limit their potential liability in these cases. While there is no guarantee that these steps will eliminate liability, they can prove to be helpful in litigation.
A key component of the Wage Order is the statement that seats are required “when the nature of the work reasonably permits the use of seats.” Occupational or industry experts can be used to analyze whether positions that require standing involve job duties that “reasonably permit the use of seats.” The benefit to developing this analysis before a lawsuit occurs lies in being able to make the argument that your company has thoughtfully and deliberately analyzed and made determinations on the subject.
Employers can also face this issue head-on, and discuss the issue of seating directly with their employees. Incorporating employees in a process that results in a written policy regarding seating can be helpful in avoiding litigation in the future.
Further, companies should not be afraid to litigate these matters. Successes in both state and federal courts thus far illustrate that these baseless claims may be dismissed at the outset of the litigation. However, some plaintiffs’ attorneys’ actions indicate that they intend to pursue these claims for the time being. As these cases continue to move through the courts, employers should continue to monitor how they progress in order to plan ahead and limit liabilities where appropriate.