Lawsuit over providing seating to cashiers heads to trial

The question of whether employers are required to provide seating to a class of cashiers heads to trial for the first time Monday since the state Supreme Court opined on the issue two years ago.

In April 2016, the state high court issued a unanimous opinion in Kilby v. CVS Pharmacy Inc., 2016 DJDAR 3230, when asked to interpret a law on suitable seating after years of litigation involving retailers and banks statewide. Workers are entitled to chairs if they spend a portion of their day on tasks that can reasonably be completed while sitting, the court ruled.

Next week, a class of cashiers at Rite Aids throughout California get their day in court. Similar lawsuits against Wal-Mart and other retailers are waiting in the wings in jurisdictions across the state.

Michael Rubin of Altshuler Berzon LLP, who argued for the plaintiffs in Kilby at the 9th U.S. Circuit Court of Appeals and the state Supreme Court, is lead trial counsel for the plaintiffs. Hall v. Rite Aid Corporation, 37-2009-00087938-CU-OE-CTL (San Diego Super. Ct., filed April 17, 2009).

"We've been preparing this case for trial for years," he said Thursday.

"Not only are we confident that the court will agree that the work of a cashier at Rite Aid can be reasonably performed while seated, but we think the result in this case will influence if not dictate the result in at least three or four other pending cases involving Rite Aid's California competitors," Rubin said.

"As a practical matter, the more physically comfortable someone is, the more eager they will be to reach out and greet a customer with a smile and a happy face," he added.

Rubin said his case covers approximately 23,000 people assigned to front end checkout stands in California, and only relates to their time cashiering for the customers. The case was brought under the California Private Attorneys General Act.

Lead defense counsel is Jeffrey D. Wohl of Paul Hastings LLP, who did not respond to a call for comment.

In the final trial brief, Wohl argued the plaintiffs' case is based on a misrepresentation of Rite Aid cashiers' roles.

"The nature of cashier/clerks' work at the checkstand does not reasonably permit the use of seats because cashier/clerks constantly are in motion, both behind the checkstand (including reaching, lifting, twisting, bending, and walking) and between the checkstand and other parts of the store," he wrote.

The lead plaintiff has no case because her union recognized in negotiations that checkstand positions are a standing job, he wrote. Sitting on the job does not project an image of good service, he wrote, adding that the modifications Rite Aid would need to make to accommodate seating are prohibitively expensive. He also argued the cashier's sought penalties are too high.

In a round of motions before trial, the defense took some hits to its arguments. San Diego County Superior Court Judge Joan M. Lewis threw out as hearsay hundreds of declarations from Rite Aid cashiers saying the job is not doable sitting. She also excluded one expert witness.

Margaret J. Grover of Wendel Rosen Black & Dean LLP, who is not involved in the case, said the burden rests with Rite Aid to show why seating its cashiers is not feasible.

"You have to give them a chair and allow them to sit when it's reasonably feasible, so if you're talking about cashiers at the register, unless you have a reason other than thinking they're less likely to fall asleep, not doing so is not likely to fly," she said.

She proposed that a defense could be the physical difficulties of installing seating, and whether it would raise safety concerns or impede exit routes. She added that the individualized structure of physical stores could be helpful to the defense.

A similar case was decided before Kilby involving K-Mart, in which a bench trial broke the other way. The judge in that case, Garvey v. K-Mart, ruled that the store in which the plaintiff worked would not feasibly allow for the modifications urged at trial by her counsel, deferring to the company's business sense.

According to Ryan Wu of Capstone Law APC, the San Diego trial will provide an interesting contrast to the K-Mart case. He added that the store layout defense is intact after Kilby with one key difference.

"The big difference is that, in Garvey, the court had placed the burden on the employees to show that the K-Mart store can accommodate suitable seats for cashiers," he said. "The Supreme Court in Kilby held that it's the employer who has the burden of proving that it cannot comply with the seating law. This change could make all the difference."

Grover said that employers should be cognizant of the standards set in Kilby moving forward regardless of the trial, or pending cases.

"A smart employer should look at each class of jobs and see how it can be performed. If they're considering not providing seating, they need to look at a day in the life of that job and see if there's an aspect of it that could be done with a chair," she said.