“SIT DOWN AND BE COUNTED!” – Court Reiterates Duty To Provide Suitable Seating

Barry A. Bradley, Esq., Managing Partner, Bradley, Gmelich + Wellerstein, CALSAGA Legal Advisor

In California, an employee is entitled to use a seat while working if the nature of the work reasonably permits the use of a seat. An employer is required, in that circumstance, to provide the employee with a suitable seat.  

In the recently decided case of Meda vs. AutoZone, Inc., et. al. (7/19/2022), the California Court of Appeal reversed summary judgment in favor of the employer and sent the case back to the trial court level for trial on the issue of whether the employer “provided” suitable seating.  Although this case takes place in a retail store setting, the same rules apply to the security industry.

Facts:

Plaintiff and appellant Monica Meda (plaintiff) worked as a sales associate for about six months at an AutoZone auto parts store (store) operated by defendant and respondent AutoZoners, a Limited Liability Company (AutoZoners). After she resigned from her position, plaintiff filed a lawsuit alleging one claim under the California Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2699 et seq.) (PAGA). She asserted that AutoZoners failed to provide suitable seating to employees at the cashier and parts counter workstations, and that some or all of the required work could be performed while sitting.

About 40% of plaintiff’s duties were performed at the cashier’s station, another 40% at the parts counter, and the remainder around the floor.  Plaintiff asserted that her time at the cashier’s station could have been performed while seated on a stool, and about half of her work at the parts counter could, likewise, have been performed while seated.  

California Wage Orders:

As a refresher, the court stated that “’wage and hour claims are today governed by two complementary and occasionally overlapping sources of authority: the provisions of the Labor Code, enacted by the Legislature, and a series of 18 wage orders, adopted by the [Industrial Welfare Commission (IWC)].” [Citation.] The IWC, a state agency, was empowered to issue wage orders, which are legislative regulations specifying minimum requirements with respect to wages, hours, and working conditions.’ ” [citations omitted.]

Although this case addresses wage order No. 7, the identical requirement is listed in Wage Order No. 4, applicable to security guards.  Specifically, it states:

“14. SEATS 

(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.”

AutoZoners claimed that it satisfied the Wage Order requirement by providing two stools by the manager’s office, located around the corner (and out of sight) from the parts counter and the cashier stations.  Unfortunately, it did not provide any seating at these workstations nor did it advise any of the employees that they had a right to carry the stools to their workstations.  The court pointed out that even if the employees used the two stools, there were five to nine employees working at any given time, so there would have been a shortage if more than two wanted to use them at once.

Totality of the Job Duties:

Although the court did not focus on the issue as to whether an employer has an obligation to place a seat at every location (such as in an office setting where desks are located), it did provide some guidance. Citing to a Supreme Court decision, the court restated:  

“[W]hen evaluating whether the ‘nature of the work reasonably permits the use of seats,’ courts must examine subsets of an employee’s total tasks and duties by location, such as those performed at a cash register or a teller window, and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated. Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles, or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.” (Kilby, supra, 63 Cal.4th at p. 18, 201 Cal.Rptr.3d 1, 368 P.3d 554.)

Result:

In reversing the summary judgment (which would have ended the case in favor of AutoZoners without the need for a trial), the court held:

“We conclude that where an employer has not expressly advised its employees that they may use a seat during their work and has not provided a seat at a workstation, the inquiry as to whether an employer has “provided” suitable seating may be fact-intensive and may involve a multitude of job-and workplace-specific factors.”

Lessons Learned For Security Employers:

In order to try to avoid PAGA or class action lawsuits based on suitable seating claims, employers should remember that each security post and assignment will be different and should be evaluated separately. Your employee handbook should make it clear that seats are available where the nature of the work would allow for their use. Employers should make the seats available where appropriate and notify employees of the same. This would satisfy the “providing suitable seating” requirement of the Wage Order according to this court. You can accomplish this analysis by incorporating suitable seating as part of your Post Site Survey performed at each of your accounts. 

Barry A. Bradley is the Managing Partner of Bradley, Gmelich & Wellerstein LLP located in Glendale, California, where he oversees the Employment and Business Teams at the firm.  A former Deputy District Attorney, Barry’s practice concentrates on representing business owners in employment, business and licensing issues, as well as defending litigated cases involving negligent security, employment and business related issues.  The firm acts as general counsel for many security companies in California.  Barry is a volunteer Legal Advisor to the California Association of Licensed Agencies, Guards, & Associates (CALSAGA), and multiple other non-profits.  

He has been conferred an AV-Preeminent Peer Rating by Martindale Hubbell, the highest rating attainable, and has been named a Southern California Super Lawyer for the past 16 consecutive years in the area of Business Litigation. Barry can be reached at bbradley@bgwlawyers.com / 818-243-5200.

About Bradley, Gmelich & Wellerstein LLP

Founded in 2000, Bradley, Gmelich & Wellerstein, LLP is dedicated to providing sound advice and exceptional results for our clients. Our twenty-five plus skilled, dedicated and diverse attorneys represent individuals and businesses of all sizes in a wide variety of business, employment law and litigation matters.  www.bgwlawyers.com.

SCOTUS TO DECIDE THE FATE OF PAGA WAIVERS IN ARBITRATION AGREEMENTS IN CALIFORNIA

Martin P. Vigodnier, Esq. and Jaimee K. Wellerstein, Esq. Bradley, Gmelich & Wellerstein, CALSAGA Legal Advisor

In what could be a seminal ruling for California employers in the fight over out-of-control wage and hour litigation, the Supreme Court of the United States (“SCOTUS”) has recently granted certiorari in Viking River Cruise, Inc., v. Moriana to decide whether federal law permits employers and employees to agree to arbitrate claims individually and waive not just class and representative claims, but California Private Attorneys General Act (“PAGA”) claims, too.

PAGA Refresher

As a brief refresher, PAGA authorizes aggrieved employees to file lawsuits to recover civil penalties on behalf of themselves, other employees, and the State of California for Labor Code violations. Employees act as “private attorneys general.” Employees can pursue civil penalties as if they were a state agency. Each initial Labor Code violation carries a civil penalty of $100 per employee, per pay period. Subsequent violations are $200 per employee, per pay period. 75% of the penalties go to the State, and 25% of the penalties go to the aggrieved employees. These penalties add up very quickly and employers can face hundreds of thousands or even millions in penalties for technical errors or other unintentional violations!

 

Background of PAGA Waivers

In 2014, in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348 (2014), the California Supreme Court held that waivers of employees’ right to pursue PAGA actions are unenforceable as they violate California public policy. The California Supreme Court also stated that the FAA does not preempt California state law prohibiting PAGA waivers because a PAGA dispute is between the State and the employee, rather than between the employer and the employee.

 

Viking River Cruise, Inc. v. Moriana

In Viking River Cruise, Inc., v. Moriana, the plaintiff worked for Viking River as a sales representative. She sued under PAGA, alleging the employer violated several wage and hour laws under the California Labor Code. Viking River moved to compel arbitration in California state court. The trial court denied the company’s motion to compel and the Court of Appeal affirmed. The California Supreme Court denied Viking River’s petition for review.

Viking River petitioned for certiorari to the United States Supreme Court, arguing that the Supreme Court’s decisions in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), and Epic Systems Corp. v. Lewis, 138 S.Ct. 612 (2018) support the conclusion that the FAA preempts California law, and requires enforcement of arbitration agreements in PAGA actions. In those cases, the Supreme Court held that bilateral arbitration agreements must be enforced, including terms that prohibit class or collective arbitrations.

 

Employer Takeaway:

It is unclear why SCOTUS granted review at this time, but a favorable ruling would be monumental. In short, if SCOTUS rules in favor of Viking River, employers could expand waivers in employment arbitration agreements to include waiver of class and PAGA claims. A decision is expected from SCOTUS in the summer of 2022. Employers are therefore advised to consult with their employment counsel and consider updating their arbitration agreements, as necessary.

If you have questions about the impact this case will have on your business, or have any employment-related questions, please contact the attorneys at Bradley, Gmelich & Wellerstein LLP. We’re here to help.

 

Martin P. Vigodnier, Esq. is a Senior Associate in Bradley, Gmelich & Wellerstein LLP’s Employment Law Department. Martin focuses his practice on labor and employment litigation, class actions, and Private Attorney General Act (PAGA) actions, including wage and hour claims, discrimination, leaves of absence, reasonable accommodation, defamation, trade secrets, retaliation, harassment, wrongful termination, breach of contract, and fraud. Martin also drafts, in both English and Spanish, contracts, regulatory compliance materials, agreements, and policies such as anti-harassment, discrimination, and retaliation policies, OSHA safety policies, employee reimbursement policies, employee stock purchase plans, independent contractor agreements, arbitration agreements, settlement agreements, cross-purchase buy sell agreements, and employee handbooks.

Prior to joining the firm, Martin was President and Founder of his solo law practice handling various employment matters. Prior to practicing law, he was an extern for the Equal Employment Opportunity Commission (EEOC) and awarded the prestigious Peggy Browning Fellowship to work for the Federal Labor Relations Authority (FLRA), assisting the Office of General Counsel analyze unfair labor practice charges against government agencies.

Martin is a native Spanish speaker and writer, and a former amateur boxer.
mvigodnier@bgwlawyers.com

Jaimee K. Wellerstein, Esq. is a Partner at Bradley, Gmelich & Wellerstein LLP, and the Head of the firm’s Employment Department. Jaimee concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, PAGA claims, discrimination, retaliation, harassment, wrongful discharge, misclassification, and other employment related lawsuits. She also provides employment counseling and training in all of these areas.

Jaimee routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies.

Jaimee assists as a Legal Advisor to CALSAGA, and is a member of ASIS International. She is rated AV-Preeminent by Martindale-Hubbell, the highest peer rating availablejwellerstein@bgwlawyers.com

 

About Bradley, Gmelich & Wellerstein LLP

Founded in 2000, Bradley, Gmelich & Wellerstein, LLP is dedicated to providing sound advice and exceptional results for our clients. Our twenty-five plus skilled, dedicated and diverse attorneys represent individuals and businesses of all sizes in a wide variety of business, employment law and litigation matters.
Our firm is very pleased to announce the promotion of Jaimee K. Wellerstein as a named equity partner and our name change to Bradley, Gmelich & Wellerstein, LLP. Jaimee will continue to serve as Employment Law Team Head and work with us to shape the future of the firm. Please note our updated email addresses and website URL in your records!