Rite Aid agrees to provide seating to cashiers, pay $18M in settlement

Rite Aid has agreed to pay $18 million and provide seating to cashiers in a proposed settlement with 23,000 class members, the terms of which became public in a notice of a motion for preliminary approval filed by class counsel on Wednesday.

Per the proposed agreement, $7.2 million of the total $18 million would go to class attorneys and approximately $1.1 million would be devoted to expenses. Of the remaining money, 25 percent would go to class members with boosted payouts for named plaintiffs. The other 75 percent would go to the state as Private Attorneys General Act fees, under which the suit was brought.

The company has also agreed to a pilot program in which it will provide chairs or stools to cashiers on request while working at check stands and post notices of seating availability in stores for employees. The program would become active 60 days after the settlement is final or Feb. 1, 2019, whichever is later.

"We believe this is not only the largest seating case settlement in history but the largest PAGA-only settlement as well. Particularly noteworthy is Rite Aid's agreement to provide seating to all cashiers throughout the state for at least two years," said lead plaintiffs' counsel Michael Rubin of Altshuler Berzon LLP.

"Our goal in bringing these cases has always been to give California workers relief from having to stand on their feet all day when many job duties could be performed when seated. It won't be long before retailers throughout California follow Rite Aid's lead and provide seating to their hard-working checkout cashiers," he continued.

The case was settled on Aug. 20 at the eleventh hour with the trial vacated in lieu of opening arguments.

The class was also represented by James Clapp of Clapp & Lauinger LLP. Jeffrey D. Wohl of Paul Hastings LLP represents Rite Aid. Neither responded to requests for comment on the settlement terms.

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

He further argued sitting does not project good service, store modifications Rite Aid would have to make were unreasonable, and the penalties sought were too high.

Rite Aid's defense suffered some blows in a series of rulings by San Diego County Superior Court Judge Joan M. Lewis.

She threw out as hearsay hundreds of declarations from Rite Aid cashiers that their job is not doable 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).

Though the case against Rite Aid is nearly a decade old, its sails were lifted by a state Supreme Court decision in 2016.

In Kilby v. CVS Pharmacy Inc., 2016 DJDAR 3230, the court decided 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 asked the state Supreme Court to interpret a law on suitable seating after years of litigation involving banks and retailers.

Rubin also represented the plaintiffs in Kilby at every appellate level.

"The plaintiffs' counsel did a great job coming up with a strong trial plan that gave employees a lot of leverage, ultimately securing one of the largest settlements of PAGA civil penalties on record. This settlement underscores the tremendous exposure faced by employers on seating violations," commented Ryan Wu of Capstone Law APC.