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“Suitable Seats” Class Action by Cashiers

The California wage orders (available here) provide: “(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.” Several large retailers have been targets of recent class actions alleging violations of these suitable seats requirements.

Most recently, Judge William Alsup of the United States District Court for the Northern District of California certified a one-store class of cashiers seeking damages for suitable seats violations against Kmart. He explained his reasoning in a June 11, 2013 decision, in a case entitled Delbridge v. Kmart Corp., Case No. C 11-02575 WHA.

Although there have not been a large number of cases, employers should assess the feasibility of providing seats for those employees who currently do not have seats at their place of work. The wage order provisions impose a mandatory duty. Employers may not wait for their employees to request seating. Should a class action result in a substantial recovery, there will likely be a number of copy cat lawsuits filed. The damages exposure could be large, because courts have ruled that suitable seats claims may be enforced through the Labor Code Private Attorneys General Act (PAGA), which provides for penalties of up to $100 per employee per pay period for an initial violation, and $200 per employee per pay period for each subsequent violation, as well as attorney’s fees. Bright v. 99c Only Stores, 189 Cal.App.4th 1472 (2010).