Is It Fair to Have a Chair? Is It Sweet to Have a Seat?
If only class actions were as easy as a Dr. Seuss book. It has been several years since “suitable seating” cases gained popularity among the plaintiff’s bar, leaving employers in California to wonder, what’s next. Fortunately, as a recent ruling from the U.S. District Court for Central District of California demonstrates, some courts share that sentiment, particularly with these kinds of case.
As employers now know, Section 14(A) of Wage Order No. 4 states that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” This requirement to provide “suitable seats” is not new—it has been on the books since 1913. What is new is the Private Attorneys’ General Act or “PAGA”. Enacted in 2003, PAGA permits private parties to seek civil penalties for violations of the California Labor Code and related regulations. In 2010, seven years after PAGA came into effect, California courts held that “suitable seating” claims could be asserted through PAGA.
The California Supreme Court has made it easy to assert PAGA claims, finding that they are not class actions and, as a result, it is not necessary to meet the sometimes onerous procedural requirements of a class action. See Arias v. Superior Court (2009) 46 Cal. 4th 969. In federal court, however, there is a difference of opinion: some federal courts subject PAGA actions to the rigorous procedural hurdles of a class action.
In a recent case, a federal court showed just how dangerous those procedural hurdles can be for plaintiffs in PAGA actions. In Henderson et al. v. JP Morgan Chase Bank, the plaintiff sought to certify a class of 8,500 bank tellers employed at Chase branches in California, but the court refused to allow it. Ultimately, the judge found that there was not sufficient “commonality,” in order to satisfy a class action – namely that there were not common questions of law and fact. The 2011 decision of the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes added this important wrinkle: “commonality” does not mean just common questions of fact and law, but questions which are capable of providing a common answer that make class treatment sensible and efficient. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2548 (2011).
Here, the court ruled that there was a slew of evidence that made clear that a “common answer” would not be forthcoming: different subclassifications of tellers, different duties for such tellers, different physical configurations from one branch to another, and different demands from location to location based upon the volume of business, i.e., how busy the branch was. Because of those variables, the court found this case could not proceed as a class action.
The upshot, then, is this: if your employees are presently not provided with seats, you should ask if the work they do “reasonably permits” them to sit. Obviously no blanket statement can be made in this regard. Depending on the business, one job position would “reasonably permit” sitting while another would not. What is clear, however, is that a thoughtful analysis is warranted, and that employers cannot simply continue to have employees stand because that is that way it has been done since the dawn of time.
The second takeaway from Henderson is that, for purposes of avoiding a potential class certification, individual inquiries regarding sitting or not sitting are a good thing. Although not conclusive, a company-wide policy against such workplace seating is the type of evidence that can tip the scales toward class certification.
One big caveat: as explained at the outset, whether one is litigating in federal or California State court, at least for the present, makes a substantial difference. If an employer is forced to defend itself in a California State court, all of the above-discussed class certification issues go away. If an employer is defending itself in federal court, these class action issues become paramount. Eventually, there will be Ninth Circuit authority to guide the parties in such cases, but for the present, defending a “suitable seating claim” harkens the old real estate adage: “location, location, location.”