Written by attorney Douglas M Larsen

The Newest California Class-Action: Failing to Provide Employees with a Chair

Count on California for developing a new and novel theory for suing employers -- failing to provide a chair for employes. Eugina Bright was a cashier at the 99 Cent Only Store. Turns out she was upset the company did not provide her with a chair. She claims that the nature of the work reasonably permitted the use of seats. She complained to the State and notified the employer (undoubtably with the help of a lawyer or union) that a seat should be provided.

The company disagreed and refused to provide that seat. So Eugina sued under the CA Private Attorneys General Act of 2004 because she had to stand up at work. This Act allows employees to seek penalties and attorneys' fees (that's the big kicker!) for violations of the Labor Code. It sets forth a penalty schedule in certain cases of $100 for each employee per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequent violation. The Court of Appeal ruled that a violation of "suitable seating" requirement of the Wage Order is a violation of Labor Code section 1198.

This code section states that the the maximum hours of work "and the standard conditions of labor" are established by the Industrial Welfare Commission. Any employment not in accordance with those standards is unlawful. So now Eugina and her lawyers get to move forward with the lawsuit in an effort to show that her position as a cashier reasonably permitted the use of seats. If she wins, Eugina gets some money and her lawyers will get a lot more. Under the Act, attorneys' fees appear to be mandatory. Yes, it's another typical day in California employment law. I wonder if an employer has an obligation to construct its facilities, such as the cashier stand, in a way that a cashier could work while sitting. I also wonder how many customers would be enthusiastic to shop at stores where cashiers were sitting ... and waiting ... for the next in line.

That just doesn't seem to me to be customer friendly. Perhaps Eugina worked at a store where she was so busy, she never needed to assist customers in any way but to scan their UPC labels. Still, I would think the employees had a fairly low interest in me if I found them sitting on the job. I told my kids growing up to keep their hands out of their pockets while at work. I told them that they can't do any work with their hands in their pockets, and that even if they could, the boss or customers wouldn't think they were interested in helping out. I see the sitting thing the same way. Absent a reason to be sitting (such as an individual with a disability), I'm thinking that the person sitting is lazy and just interested in taking my money before I walk out the door. But then, this type of law is what makes CA great for lawyers and bad for business!

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