With the first “suitable seating” class action under review by a trial judge in San Francisco, the U.S. Court of Appeals for the Ninth Circuit has decided to weigh in on a related case against Wal-Mart Stores Inc. that could be worth more than $150 million.
The appeals court on Tuesday agreed to review class certification of roughly 22,000 Wal-Mart cashiers in California who claim they were denied a place to sit in violation of state labor regulations.
The class was approved in August by U.S. District Judge Edward Davila of San Jose, who subsequently stayed proceedings in Brown v. Wal-Mart Stores, 09-3339, while the Ninth Circuit considered review.
Meanwhile, U.S. District Judge William Alsup concluded a bench trial last week in a similar case against Kmart Corp. That case focused on 65 cashiers employed by one Kmart store in the Central Valley city of Tulare and maximum penalties of less than $500,000.
Alsup said he would use the limited trial in Garvey v. Kmart, 11-2575, to test the merits of the case and the practicality of classwide certification. He has sought input from state labor agencies on their interpretation of the decades-old wage order stating “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”
The rule seemingly was not enforced prior to the spate of civil litigation against companies including Target Corp., Bank of America, CVS Pharmacy and Ralph’s Grocery.
The recent claims seek civil fines under California’s Private Attorney General Act of 2004, or PAGA, which means 75 percent of penalties awarded flow into the state treasury and prevailing employees are entitled to 25 percent.
Wal-Mart is represented by Theodore Boutrous Jr. and Catherine Conway of Gibson, Dunn & Crutcher in Los Angeles. Plaintiffs are represented by an array of lawyers associated with Righetti Glugoski in San Francisco; Dostart Clapp & Coveney in San Diego; and Jones Law Firm in Reno.