Are seating cases the next wave in
California wage and hour class actions?
Several prominent retailers have faced litigation from cashiers who
want on-the-job seating
BY JOEL GROSSMAN, ESQ.
June 24, 2013
BUSINESS INSIGHTS FOR LAW DEPARTMENT LEADERS
Reprinted with permission from InsideCounsel
All of us have been to supermar-
kets, drugstores and department
stores where the cashiers stand
at their checkout stations. But
could this be a violation of law?
Should the employer be obligated
to provide seating for its cashiers?
Recently this claim was tried in
federal court in San Francisco and
the judge ruled that seating was
not required for a group of Kmart
cashiers. The ruling, however,
was not definitive, and the case is
worth considering.
At the center of the case is a
California administrative regula-
tion, which states: “All working
employees shall be provided with
suitable seats when the nature
of the work reasonably permits
the use of seats.” The regulation
clearly invites litigation, as who
is to say whether, in the case of
a cashier at a grocery store or
drugstore, the “nature of the work”
would “reasonably” permit the
cashier to use a seat? This ambi -
guity has led to several lawsuits
in California against prominent
retailers such as CVS Pharmacy
and Kmart.
In Garvey v. Kmart Corporation
in 2012, the trial court certified a
class of all cashiers in one Kmart
store in Tulare, Calif. The opinion
provided diagrams of a cashier’s
work station and described the
work station and specific activities
at great length. The court found
that “most of the tasks done by
a Kmart cashier could be done
while seated, but some tasks can
only be done while standing...
even if seating were allowed,
cashiers would be up (and down)
frequently to perform the tasks
that require standing.”
During the trial, counsel for the
employee class acknowledged
that simply providing chairs or
stools to the cashiers would not
provide “suitable seating” in the
standard Kmart cashier work
station. Rather, the plaintiff class
proposed a reconfiguration of the
work station so that seating could
be provided. The court examined
this proposal and rejected it, stat-
ing that: “the proposal by class
counsel is just not safe and work-
able.” Having rejected plaintiff
class’ proposed reconfiguration
of the work station, however, the
court did not simply dismiss the
claim. The court went on to de -
scribe what it called a “lean-stool,”
which would permit the cashiers
to lean, but not sit. The court felt
that the lean-stool would allow
the cashiers to take some weight
off their legs while still working
efficiently. The cashiers would also
move from a leaning to a standing
position to perform those tasks
that required standing.
Wholly apart from the physical
configuration of the work station,
Kmart argued that the nature
of the work did not reasonably
permit seating because of cus-
tomer service. Specifically, Kmart
argued that: “its cashiers should
be required to stand in order to
project a ready-to-assist attitude
to the customers waiting in line,
all of whom are already standing.”
The court accepted this argument,
and held as follows: “where an
employer requires its employee to
stand for good customer service
and relations (with appropriate
rest breaks), then this should be
permitted so long as the ratio-
nale is genuine and grounded in
reason.”
Although Kmart won the case
dealing with one particular store,
and had its “good customer
service” rationale endorsed by the
court, there is little doubt that liti-
gation in this area will continue.
One federal district court judge’s
ruling, of course, is not binding
on other courts, and it may be
some time before an appellate
court weighs in on this issue. Stay
tuned.
Joel M. Grossman is a mediator
and arbitrator with alternative
dispute resolution provider JAMS.
His practice focuses on employment,
entertainment and other business
disputes. He can be reached at
jgrossman@jamsadr.com.
All of us have been to supermarkets, drugstores and department stores where the cashiers stand at their checkout stations. But could this be a violation of law? Should the employer be obligated to provide seating for its cashiers? Recently this claim was tried in federal court in San Francisco and the judge ruled that seating was not required for a group of Kmart cashiers. The ruling, however, was not definitive, and the case is worth considering.
At the center of the case is a California administrative regulation, which states: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." The regulation clearly invites litigation, as who is to say whether, in the case of a cashier at a grocery store or drugstore, the "nature of the work" would "reasonably" permit the cashier to use a seat? This ambiguity has led to several lawsuits in California against prominent retailers such as CVS Pharmacy and Kmart.
In Garvey v. Kmart Corporation in 2012, the trial court certified a class of all cashiers in one Kmart store in Tulare, Calif. The opinion provided diagrams of a cashier's work station and described the work station and specific activities at great length. The court found that "most of the tasks done by a Kmart cashier could be done while seated, but some tasks can only be done while standing...even if seating were allowed, cashiers would be up (and down) frequently to perform the tasks that require standing."
During the trial, counsel for the employee class acknowledged that simply providing chairs or stools to the cashiers would not provide "suitable seating" in the standard Kmart cashier work station. Rather, the plaintiff class proposed a reconfiguration of the work station so that seating could be provided. The court examined this proposal and rejected it, stating that: "the proposal by class counsel is just not safe and workable." Having rejected plaintiff class' proposed reconfiguration of the work station, however, the court did not simply dismiss the claim. The court went on to describe what it called a "lean-stool," which would permit the cashiers to lean, but not sit. The court felt that the lean-stool would allow the cashiers to take some weight off their legs while still working efficiently. The cashiers would also move from a leaning to a standing position to perform those tasks that required standing.
Wholly apart from the physical configuration of the work station, Kmart argued that the nature of the work did not reasonably permit seating because of customer service. Specifically, Kmart argued that: "its cashiers should be required to stand in order to project a ready-to-assist attitude to the customers waiting in line, all of whom are already standing." The court accepted this argument, and held as follows: "where an employer requires its employee to stand for good customer service and relations (with appropriate rest breaks), then this should be permitted so long as the rationale is genuine and grounded in reason."
Although Kmart won the case dealing with one particular store, and had its "good customer service" rationale endorsed by the court, there is little doubt that litigation in this area will continue. One federal district court judge's ruling, of course, is not binding on other courts, and it may be some time before an appellate court weighs in on this issue. Stay tuned.