Metropolitan News-Enterprise


Monday, November 15, 2010


Page 1


Court Rules Store May Be Liable For Not Giving Seats to Cashiers


By SHERRI M. OKAMOTO, Staff Writer


A retailer’s failure to provide its cashiers with seats exposed it to liability for civil penalties, this district’s Court of Appeal ruled Friday.

Div. Five said Los Angeles Superior Court Judge Luis Lavin abused his discretion in tossing out a class action against the 99¢ Only Stores since the company’s failure to provide suitable seating for its employees was a prohibited condition of labor for which Eugina Bright could seek redress as a private attorney general.

Bright, a cashier for the 99¢ Only Stores, alleged that her employer was not in compliance with an Industrial Welfare Commission wage order requiring employees be provided with suitable seating if the nature of their work would reasonably permit sitting during the performance of their duties. She contended that the failure to provide her with a seat constituted a violation of Labor Code Sec.1198.

That statute provides the “standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees” and the employment of any employee “for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.”

Civil Penalties

Bright sought penalties against 99¢ Only Stores under Sec. 2699(f)—which allows an employee acting as a private attorney general to bring an action for civil penalties for code violations, except for those provisions for which a civil penalty is provided—attorney fees, and costs.

The 99¢ Only Stores demurred to Bright’s complaint, contending she had failed to allege facts sufficient to state a cause of action because the claimed wage order violation did not violate Sec. 1198. Even if it did, the retailer argued civil penalties were not available under Sec. 2699(f) since the wage order had its own penalty provision.

‘Prohibited’ Condition

Lavin agreed, finding the failure to provide seating was not a condition “prohibited” by the wage order and therefore did not violate Sec. 1198. He further determined that civil penalties would not be available, even if Bright could show a violation of Sec. 1198, because the wage order contained a penalty provision which restricted the imposition of penalties to cases where the employee was underpaid and Bright did not claim to have been underpaid.

The judge sustained the demurrer without leave to amend, dismissed the complaint with prejudice, and entered judgment in favor of the 99¢ Only Stores.

Writing for the appellate court, Justice Sandy R. Kriegler noted the wage order was adopted by the commission pursuant to its statutory authority to regulate working conditions for the protection and benefit of employees in California.

He posited that the suitable seating requirement therefore was a “standard condition of labor fixed by the commission” pursuant to Sec. 1198, and a violation of this condition constituted a worker’s “employment…under conditions of labor prohibited by the order.”

Wage Violations

The justice went on to explain the penalty provision in the wage order referred only to wage violations, but this penalty provision was not the exclusive remedy for every violation of the wage order since it specifically stated that it applied “[i]n addition to any other civil penalties provided by law.”

Absent any civil penalty specific to violations of the suitable seating requirement, Kriegler reasoned, the penalties provided by Sec. 2699(f) were available for Bright’s wage order violation claim.

Justices Orville A. Armstrong and Richard M. Mosk joined Kriegler in his opinion.

James F. Clapp, Marita Murphy Lauinger and Zachariah P. Dostart of Dostart Clapp Gordon & Coveney represented Bright along with Michael Rubin and Emily White of Altshuler Berzon.

Malcolm Heinicke, Mark H. Epstein, Katherine M. Forster and Puneet K. Sandhu of Munger, Tolles & Olson represented 99¢ Only.

The case is Bright v. 99¢ Only Stores, 10 S.O.S. 6374.


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