Worker seat case settles on trial’s eve

SAN DIEGO -- A 23,000-member class action over whether Rite Aid must provide seating to cashiers per a 2016 state Supreme Court decision settled in the eleventh hour, vacating trial the morning opening arguments were scheduled.

The terms of the settlement will not be disclosed until formal approval by the court, but include economic and other relief. Multiple, similar lawsuits are pending in other jurisdictions statewide against other major retailers, including Wal-Mart Stores Inc.

Lead plaintiff's counsel in the Rite Aid case is Michael Rubin of Altshuler Berzon LLP, who argued for the plaintiffs at each appellate level in the underlying 2016 case, Kilby v. CVS Pharmacy Inc., 2016 DJDAR 3230.

"After a decade or more of litigation, these seating cases are starting to proceed to trial or settling on very favorable terms to the affected workers and the state," Rubin said.

"Because of these 'suitable seating' cases, bank tellers throughout the state are now able to sit while performing customer transactions, and given the cases coming up, it shouldn't be long before the same holds true for most retail store cashiers."

Jeffrey D. Wohl of Paul Hastings LLP represents Rite Aid. He did not respond to a request for comment on the settlement.

Prior to trial, Rite Aid's case took significant lumps in a series of motion rulings by San Diego County Superior Court Judge Joan M. Lewis. She threw out as hearsay hundreds of declarations from Rite Aid cashiers saying the job cannot be done sitting, and excluded an expert witness. Hall v. Rite Aid Corporation, 37-2009-00087938-CU-OE-CTL (San Diego Super. Ct., filed April 17, 2009).

In Kilby, the state Supreme Court ruled unanimously that workers are entitled to chairs if they spend a portion of their day on tasks that can reasonably be performed while sitting. The 9th U.S. Circuit Court of Appeals had asked the Supreme Court to interpret a law on suitable seating after years of litigation involving retailers and banks.

When the opinion was released, it was viewed as a mixed bag with positives for both defense and plaintiff attorneys. The former was pleased to see the court say all tasks at a work station must be considered before requiring seating.

The latter was pleased to see the court rule that seating can be required on a station by station basis, and that court analysis on the requirement be based on a general look at the job rather than specific physical qualities of each employee.

Finally, and according to some attorneys most importantly, Kilby shifted the burden of proof to employers. Prior to that, courts deferred to employers' "business sense."

In a similar case pre-Kilby, a bench trial involving K-Mart went the other way. The judge in that case ruled the store in which the plaintiff worked would not feasibly allow for the modifications urged at trial by her attorney for providing seating.

Now, that argument would be much harder to make.

"In this case, Rite Aid's business judgment defense is just a made-up, after-the-fact justification for an unlawful business practice that never rested upon any objective evidence," Rubin argued in his final trial brief.

In that round of briefs, Wohl made several distinct arguments in defense of Rite Aid's corporate policy against seating cashiers. He wrote that because the plaintiff's union recognized in negotiations that her job is a standing position, her case should have been dead on arrival.

Further, he wrote that sitting does not project an image of good service, that the store modifications Rite Aid would have to make are unreasonable. He also wrote that the penalties sought were are too high.

The bench trial was set to take place over the course of three weeks before Lewis.

"I think it's almost certain that there will be some sort of injunctive relief in which they will agree to provide some sort of seating, whether it will be directly behind cashiers or someplace else they can go to sit down," speculated Margaret J. Grover of Wendel Rosen Black & Dean LLP, who is not involved in the case.

She added that similar lawsuits might see some impact, which could be an increase in value or added difficulty settling for defendants worried by Rite Aid's result.

"It will probably embolden the plaintiff side. They'll be more confident, if they weren't already, that their cases may resolve in their favor," she said.

Gina Roccanova of Meyers Nave Riback Silver & Wilson PLC agreed other litigants would watch the settlement closely. However, they might not be strongly affected due to the particular circumstances of the Rite Aid suit, she said.

"I'm sure the parties to the other cases are going to be watching this, but if it's those evidentiary rulings on motions that pushed this to settlement, I don't know that it's going to sway those other ones much," she said.

One question that might arise for employers is what power they have to control seating they are required to provide, she said. The wage order implies that available seating must be allowed to be used, but is mum on when or how much.