Metropolitan News-Enterprise


Monday, May 19, 2014


Page 1


Court Revives Class Action Over Lack of Seats for Cashiers


By a MetNews Staff Writer


The Fourth District Court of Appeal has revived a class action charging a major drugstore chain with failing to provide its cashiers with seats, in violation of state labor regulations.

While the trial court may yet decertify the class of Rite Aid employees, Div. One ruled, its previous order decertifying the class was erroneous because it considered the merits of the claim, rather than the appropriateness of a class-wide remedy. The court Friday certified its May 2 opinion for publication.

The action by Kristin Hall, who worked at a Rite Aid store in San Diego County, accuses the company of violating an Industrial Welfare Commission regulation requiring that employees be provided with seats “when the nature of the work reasonably permits the use of seats.”

The plaintiff’s class certification motion was originally granted, over the company’s objections that individual issues would predominate.

Rite Aid contends that its cashier/clerks, as Hall was classified, perform duties that vary from store to store, and may involve significant time away from the checkout stands. On average, it claimed, a cashier/clerk is only cashiering 42 percent of the time, and is otherwise working in the stockroom or on the floor, and must walk around, for example to retrieve controlled items like liquor and tobacco, even during part of the time they are assigned behind the counter.

Shortly before trial, San Diego Superior Court Judge Joan M. Lewis granted the company’s motion to decertify the class. She concluded that “individualized issues predominate as to whether the ‘nature of the work’ of a cashier/clerk reasonably permits the use of a suitable seat” and said she agreed with the analysis in Kilby v. CVS Pharmacy, Inc., a 2012 case from the U.S. District Court for the Southern District of California requiring that a job be assessed “as a whole” in determining whether seats must be provided under the IWC rule.

But Justice Alex McDonald, writing for the Court of Appeal, said the judge’s reliance on Kilby was misplaced because the merits of the claim were not before the court on the motion to decertify. He cited Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, in which the court laid out the framework for certifying or decertifying classes in employment actions, emphasizing the uniformity or lack of uniformity of the practices complained of.

He wrote:

“Here, as in Brinker and its progeny, Hall alleged (and Rite Aid did not dispute) that Rite Aid had a uniform policy of the type envisioned by Brinker: Rite Aid did not allow its Cashier/Clerks to sit (and therefore provided no suitable seats for its Cashier/Clerks) while they performed check-out functions at the register.  Hall’s theory of liability is that this uniform policy was unlawful because section 14 [of IWC Wage Order 7-2001]  mandates the provision of suitable seats when the nature of the work reasonably permits the use of seats, and the nature of the work involved in performing check-out functions does reasonably permit the use of seats.  Hall’s proffered theory of liability is that, regardless of the amount of time any particular Cashier/Clerk might spend on duties other than check-out work, Rite Aid’s uniform policy transgresses section 14 because suitable seats are not provided for that aspect of the employee’s work that can be reasonably performed while seated.

“It does not appear that any aspect central to Hall’s theory of recovery (i.e. what is Rite Aid’s policy, and whether the nature of the work involved in performing check-out functions would reasonably permit the use of seats) would not be amenable to common proof.” 

The ruling does not necessarily mean that the case will proceed to trial as a class action, however. Rite Aid can bring a motion for summary adjudication or judgment on the pleadings in order to raise substantive challenges prior to trial, the jurist said, or the judge may decertify the class “for other and proper reasons.”

The case is Hall v. Rite Aid Corporation, 14 S.O.S. 2437.


Copyright 2014, Metropolitan News Company