SAN FRANCISCO — Corporate lawyers like to imagine plaintiffs attorneys huddled behind closed doors, dreaming up ideas for lawsuits against businesses with deep pockets. This time, it might have actually played out that way.
Nearly four years ago, a small group of plaintiffs lawyers held a meeting in San Francisco to brainstorm new fronts in employment litigation.
One lawyer in attendance, who previously worked as a government regulator, volunteered an idea based on a decades-old mandate that seats be provided to workers whose jobs do not require standing.
The rest, as they say, is history. Since 2009 California courts have grappled with a wave of suits targeting large retailers, groceries and banks for not providing seats to clerks and cashiers.
With large sums at stake and a long list of companies facing suits, including Wal-Mart Stores Inc., Target Corp., Bank of America, CVS Pharmacy and Ralph’s Grocery, corporate defense lawyers and business groups are paying close attention.
The so-called “suitable seating” cases have yielded conflicting rulings from state and federal courts on class certification and motions for summary judgment.
This coming week, the first trial in a seating class action starts in San Francisco before U.S. District Judge William Alsup in Garvey v. Kmart, 11-2575.
The bench trial before Alsup will focus on 65 cashiers employed by one Kmart store in the Central Valley city of Tulare and involves maximum penalties of about $500,000. Alsup has said he intends to use the case to test the manageability of statewide certification.
Kmart is represented by Amanda Sommerfeld and Robb Adkins of Winston & Strawn in Los Angeles and San Francisco. On Thursday, Kmart augmented its trial team with S.F. attorney Jeffrey Wohl, chair of Paul Hastings’ employment law practice.
On the plaintiffs’ side are Matthew Righetti of Righetti Glugoski; Zachariah Dostart and James Clapp of Dostart Clapp & Coveney in San Diego; and Kevin McInerney of Reno. They’ve teamed up on roughly a dozen suitable seating cases across the state. Righetti hosted the meeting in early 2009 that was described in a deposition as the initial discussion of suitable seating litigation.
Righetti called the genesis of the lawsuits irrelevant.
“The fact that seating case issues were discussed at one or more meetings, who cares?” Righetti said. “Does that mean Kmart is any more or less in compliance?”
The regulation at issue has been on the books for decades as part of California’s industry-specific wage orders. It states “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”
The recent claims are brought under California’s Private Attorney General Act of 2004, or PAGA, which means 75 percent of penalties flow into the state treasury for the enforcement of employment laws. Prevailing employees are entitled to 25 percent, with attorney fees and costs paid by the defendant.
The lawsuits do not allege damages but seek civil penalties established by PAGA of $100 per employee per pay period for a first violation, and $200 per employee per pay period for subsequent violations. There is no requirement that plaintiffs prove employees suffered physical or emotional harm from standing.
“It’s such a simple statute,” Righetti said. “It could not be any more straightforward and simple. Some judges are just tripping over it like it’s Latin, like it’s Greek. It means what it says.”
Wohl said no state or federal appellate courts have analyzed the language of the rule and whether the work of a cashier or teller can reasonably be performed while seated.
Having retail clerks stand at the checkout counter is accepted practice in the United States, Wohl said.
“The courts are still sorting it out,” he said. “So far no court has ruled that employers are required to give seats to sales associates or cashiers.”
Wohl represents Rite Aid in a similar case in San Diego County Superior Court where the judge decertified a class of 15,000 cashiers and clerks last month, concluding that individual analysis of each employee’s job responsibilities would be preferable to a class action.
The Rite Aid ruling referenced a federal judge’s termination in May of a similar case against CVS.
“If, as here, the majority of an employee’s assigned duties must physically be performed while standing, and the employer expects and trains the employee to stand while doing so, the ‘nature of the work’ requires standing,” wrote San Diego U.S. District Judge Michael Anello.
Anello’s ruling in the CVS case has been appealed to the U.S. Court of Appeals for the Ninth Circuit.
Alsup is the first federal judge to certify a suitable seating class, finding Kmart had a uniform policy of not providing seats to cashiers in its Tulare store. He declined to consider expert testimony from Kmart that some cashiers would be too lazy to stand up to safely lift heavier items and rejected arguments that class lawyers improperly concocted the lawsuit before they had a client.
U.S. District Judge Edward Davila in San Jose followed with an August order certifying a statewide class of 22,000 Wal-Mart cashiers in a case potentially worth more than $150 million.
The decisions by the two Bay Area federal judges in favor of plaintiffs create a split among district courts in California, and Wal-Mart has appealed class certification.
Last month, Wal-Mart replaced Greenberg Traurig as lead counsel with a new team led by Theodore Boutrous Jr. and Catherine Conway of Gibson, Dunn & Crutcher in Los Angeles. Boutrous and Conway asked Davila to stay proceedings pending a decision from the Ninth Circuit. Davila has not ruled on the request.
In another case now at the Ninth Circuit, U.S. District Judge Manuel Real in Los Angeles dismissed plaintiffs’ claims after finding that Bank of America’s “only obligation was to make seats available to employees to the extent that they want them or request them, not necessarily ensure that every employee has a seat, regardless of whether they want one or not.”
Lawyers for the California Retailers Association, California Grocers Association and California Chamber of Commerce filed an amicus curiae brief urging the appeals court to affirm Real’s ruling in Green v. Bank of America, 11-56365.
Businesses should be able to decide whether an employee sits or stands while on the job, the lawyers wrote.
“Employees who are involved in sales and customer service are required to stand while performing their duties because they are expected to exhibit a professional appearance and convey an energetic, ‘ready to assist’ image to customers,” the brief states. “In contrast, employees who are sitting down tend to convey a message that they are on a break, unavailable, unwilling to assist customers, or lazy.”
Not surprisingly, Righetti has a different take. In other countries, it’s typical for hotel clerks and cashiers to perform their work seated, Righetti noted.
The basic tasks of a cashier at Kmart include scanning and bagging items and “saying ‘Thank you for shopping at Kmart,’” he said, adding, “Why on god’s green earth can’t that be done seated?”
In declarations filed in the case, Kmart cashiers claim they were expected to stand through their shifts even if their feet ached. A Long Beach store employee said she asked to sit after a knee injury, but a supervisor denied her request.
The trial will focus less on tired feet than on the job duties of a cashier and whether that work “reasonably permits” the use of seats. Both sides are expected to bring in ergonomics experts.
William Spencer Hamer III, an employment lawyer at Michelman & Robinson in Los Angeles, said the upcoming trial could turn on very specific evidence about the daily work of a cashier.
“You need to look at the actual flow of how that work is performed and where is the point of interaction with the customer,” said Hamer, who is not involved in suitable seating litigation but advises clients on how to protect themselves from suits.
Hamer said the flurry of seating lawsuits took him by surprise because the provision had not previously been enforced. Now he advises companies to disseminate written policies regarding seating and to place seats near employee work areas.
“For the vast majority of California employers, this was completely off their radar screen,” he said.
Lawyers representing businesses sued over lack of seating contend that cashiers perform a wide variety of duties, including operating cash registers, greeting customers, cleaning, stocking, answering the telephone, and assisting customers to their cars. Some tasks, like reaching for items and lifting heavy merchandise, cannot safely be performed while sitting.
“The sales transaction requires a fluid movement including reaching, bending, twisting and walking,” Kmart’s lawyers wrote in pretrial filing. “These movements render a seat in the Tulare Kmart cash register stations inappropriate for cashiers’ work.”
Moreover, the height and configuration of the cash register station is designed for employees to stand, they wrote.
This past week, Alsup refused a last-minute request from Kmart to decertify the class. He also rejected a motion from Kmart to postpone trial until after the holiday shopping season, when the Tulare store near Visalia brings in more than 90 percent of revenues. However, Alsup said he would strive to complete the trial prior to Black Friday, Nov. 23.
Kmart’s lawyers argued that determining whether a cashier can perform the job seated requires an individual assessment of a cashier’s stature and physical capacity.
Alsup said he would use the Tulare trial to explore whether individualized issues trump common ones.
“I’m open to hearing that argument, but I am not there yet,” Alsup said. “I want to hear the evidence.”