The California Wage Orders not only require the payment of minimum wage and overtime pay, they also regulate a large number of working conditions. For example, Wage Order No. 7, applying to the retail industry, requires that employers provide “suitable seats” for employees where the work “reasonably permits” the use of seats. The Wage Order imposes civil penalties for violations, but only to “underpaid” employees, and thus does not impose a civil penalty for failing to provide suitable seating. Until recently, no appellate court had held that employees allegedly denied suitable seating could seek a monetary remedy.

Then, on November 12, 2010, the Court of Appeal, in Bright v. 99¢ Only Stores, held that employees denied suitable seating can seek civil penalties under the Labor Code Private Attorneys General Act of 2004 (“PAGA”). In Bright, the trial court had dismissed the claim of a retail store cashier seeking civil penalties for being denied seating while she was working. The Court of Appeal reversed and reinstated the claim. The logic of the court’s reasoning was as follows:

  1. PAGA permits aggrieved employees to sue for civil penalties (of $100 or $200 per employee per pay period) for virtually any violation of the Labor Code, and creates a civil penalty for violations of the Labor Code for which a civil penalty is not already specifically provided.  
  2. Labor Code section 1198 makes it unlawful to employ employees under conditions of labor prohibited by a wage order.  
  3. Wage Order No. 7, in its suitable seats provision, has created a condition of labor that the Labor Code has incorporated through Section 1198.  
  4. Because the Labor Code therefore essentially requires suitable seats for employees, without specifically providing for a civil penalty, PAGA supplies a civil penalty and empowers aggrieved employees to sue to recover that penalty.  

The Bright court rejected the employer’s two arguments in support of dismissal. First, the employer argued that Section 1198, in addressing employment under “conditions of labor prohibited by the order,” does not incorporate the “suitable seats” provision, whose language is not prohibitory, but rather affirmatively requires suitable seats. The court noted that other language in Section 1198 states that the “standard conditions of labor” appearing in the wage orders “shall be the standard conditions of labor,” and rejected the employer’s semantic argument as not in keeping with the remedial purpose of the Labor Code.

Second, the employer argued that the Wage Order’s provision of a civil penalty only for pay violations indicated an intent to create no penalty at all for seating violations. In rejecting this argument, the court concluded that the Wage Order’s civil penalties for pay violations were “not meant to be the exclusive remedy for every violation” of the Wage Order.

What The Bright Decision Means for Employers

Because many employers, for valid ergonomic and business reasons, require employees to stand while working, the Bright decision potentially has broad ramifications. Furthermore, as the Bright court itself observed in a footnote, there are many additional Wage Order provisions similar to the “suitable seats” requirement—addressing such things as recordkeeping, uniforms and tools, meal breaks, rest breaks, and suitable change rooms and resting facilities—that the plaintiffs’ bar will contend also can serve as the basis for PAGA claims.