Hunton Employment & Labor Perspectives

The Bright v. 99 Cents Only Stores decision, issued by the California Court of Appeal for the Second Appellate District last November, illustrates a recent wage and hour class action litigation trend against retail employers in California over lack of “suitable seating” for their employees. The California Supreme Court denied review of this case in February 2011.

Eugenia Bright, a cashier at the discount retail chain 99 Cents Only Stores, initiated a class action against her employer in Bright v. 99 Cents Only Stores, 189 Cal. App. 4th 1472 (Cal. Ct. App. 2010), review denied (Feb. 16, 2011). She argued that by failing to provide “suitable seating” to its cashiers, her employer violated provisions of Section 14 of the Industrial Welfare Commission (IWC) Wage Order 7-2001, a seldom used and relatively untested provision that requires employers to provide seating for their employees under certain circumstances. She also sought civil penalties under California’s Private Attorneys General Act of 2004, § 2698 et seq. (“PAGA“).  PAGA permits employees to sue their employers and collect statutory penalties on behalf of all current employees, as well as all former employees who worked for the company within PAGA’s one-year statute of limitations. PAGA penalties consist of $100 for each aggrieved employee for the first violation and $200 per pay period for each aggrieved employee for subsequent violations.  Plaintiff also sought attorneys’ fees, available to plaintiffs who prevail in PAGA actions.

The trial court dismissed the plaintiff’s PAGA claim on the grounds that IWC Wage Order 7-2001 restricts civil penalties to cases in which the employee was underpaid. The California Court of Appeal for the Second Appellate District, however, reversed and reinstated the claim. The appellate court held that because the California Labor Code incorporated the labor conditions set by the IWC, a violation of the suitable seating requirement is a violation of the California Labor Code. Thus, the court concluded that employees can recover monetary damages under PAGA when employers do not comply with IWC Wage Order requirements, including, without limitation, the suitable seating requirement. 

Moreover, the 99 Cents Only Stores decision makes clear that penalties under PAGA are available even when the employers’ violations do not result in lost wages. While actions filed thus far concern compliance with seating requirements provided for in the state’s wage orders, arguably the analysis may apply to any minor violation of California’s wage orders including a violation of an employer’s obligation to provide lockers and changing rooms, display clocks in major work areas, and maintain bathrooms at certain temperatures. 

Since this decision, a wave of class action suits have been filed against retail employers with operations in California for alleged “suitable seating” violations. While they have not yet been targeted by the Plaintiffs’ bar, other California employers such as restaurants and manufacturers may become future targets for these types of claims and should take steps to ensure compliance with these and other provisions found in California wage orders.