National retail stores in California hit with wave of lawsuits over seats for employees

PAUL ELIAS Associated Press

SAN FRANCISCO — Retail store operators may want to sit down for this one — if they can find a chair.

Nearly every national chain is under legal attack in California for failing to provide “suitable seating” for cashiers and other employees who are expected to spend most of their work day on their feet.

Enterprising trial attorneys by the dozen are using an obscure California labor law requiring retailers such as Wal-Mart, Home Depot and Target to have enough seats on hand for their workers.

Superficially, the allegations appear to be little more than a nuisance.

But armed with two recent appellate decisions that allow workers and their lawyers to use California’s novel “private attorney general” provision, the retailers are facing millions of dollars in damages. A first violation calls for as much as $100 per employee per pay period and double that for subsequent violations.

Lawyers say those penalties add up for big-box retailers that employ hundreds of thousands of Californians.

“We are really in unchartered waters,” said Eric Steinert, an attorney who represents several of the retailers. “But there’s no doubt there’s a wave of lawsuits being filed. You are seeing some attorneys moving into this area who previously didn’t pay attention to workplace issues.”

Steinert said some of the first lawsuits were filed in 2009 and are based on an obscure provision of the labor code referring to an order issued by the Industrial Welfare Commission.

“All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats,” the provision states. “When employees are not engaged in the duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and the employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

The first of the two key appellate decisions turning that phrase into law was issued in November. The stampede to the courthouse began shortly afterward. Lawyers predict that more than 100 such lawsuits have been filed throughout the state.

The first appellate ruling overturned a lower court’s decision tossing out Eugenia Bright’s lawsuit against 99 Cents Only Stores.