Wal-Mart just settled a case with a class of employees. Yeah, I know, tell me something new already, right? What if I told you it was not a disability or discrimination case and that Wal-Mart will pay $65m and that the case was in litigation for 9 years and was just about to go to trial? Am I getting warmer? Maybe not.What if I were to tell you that the lawsuit was about seating for employees–and that other large companies (think Bank of America and CVS) have had to settle similar cases? Whaaat? C’mon now you’re a little curious right? Read on to find out more…
(image from usofficeinteriors.com)
So what’s up with Wal-Mart and seating? This case, Brown v. Wal-Mart Inc. involves 100,000 present and former cashiers that accused Wal-Mart of violating state law (California) by refusing to provide them seating while they worked. Wal-Mart of course, denied any wrongdoing (not unusual). Wal-Mart had argued that stools at cash registers could pose a safety hazard and make workers less productive. Specifically, cashiers’ work, according to Wal-Mart doesn’t “reasonably permit seating”, because they need to scan large items, stretch to see the bottom of customers’ shopping carts, bag merchandise and sometimes work away from cash registers. Wal-Mart said it does have policy of providing seating for cashiers with disabilities or medical conditions, and that store managers have discretion to provide stools on a case-by-case basis.
Here’s the problem: the cashiers were not requesting the seating as a reasonable accommodation. If so, there might be wiggle room. The cashiers would have to show that they had a disability and that seating was the only or the best reasonable accommodation, or something similar. This requirement is codified in California’s Wage Order 7-2001 § 14(A), and explicitly says, in relevant part, “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” The employees also argued that violation of the Wage Order in turn violated the California Labor Code. OK, you might be thinking, so what? Well, violation of the Labor Code allows private individuals to sue and seek penalties under the Private Attorney General Act. Oh, and did I mention that if the court approves the settlement, it will be the largest one under the Private Attorney General Act? Did I also mention that under the PAGA, the plaintiffs get 25% of the settlement proceeds after attorneys’ fees? Given the settlement amount, even 25% after attorneys’ fees should be a nice chunk of change.
I did mention that Wal-Mart is not the only employer that’s had to face such a lawsuit and I do want to be fair. In April 2016 the California Supreme Court in Kilby v CVS Pharmacy, Inc. ruled that employers must provide appropriate seating “when the nature of the work reasonably permits the use of seats.” Sounds good, but what type of work would “reasonably permit” such seating? Well, um, the court didn’t really provide guidance there. In the Fall of 2016 in Green, et al v Bank of America, N.A. a similar class action lawsuit, Bank of America settled a “suitable seating” lawsuit by non-exempt tellers for $15 million. In that case the tellers alleged that BofA required them to stand while working, even though there was ample room behind the counter for seating. In addition to the money, BofA agreed to provide the seating and to advise tellers of their rights to use seats when the nature of their work reasonably permits seating. This provision does not apply, however, when the nature of tellers’ work does not permit them to work while seated. If a seat is not available a teller is supposed to advise management, who in turn must procure the seating. Lastly, BofA agreed to post documentation of its policy.
Now, I know this case involves state law, and I usually post about federal issues. There is a takeaway for all employers here, though: Know and follow the laws of all states where you employ people. Even if your headquarters and most of your operations are in one state. If you employ people in more than one state, you will need to be aware of the laws of each state where you employ people and you need to comply with them. If you do employ people in California, then consult with California employment counsel to determine if the nature of your employees’ work reasonably permits seating. If so, draft a policy and make sure to inform your employees and provide them a copy of the policy. If you do not employ anyone in California, check to see if there are any similar requirements in the state(s) where you do employ people. Check for other state requirements too. Who knows? You might learn of other state employment laws that apply to you. Better safe than sorry, right?
OK, that’s all for now. See you next week.
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