Garvey v. KMart: Judge Alsup Rules For The Defense in "Suitable Seating" Case After Trial

The first of the "suitable seating" class actions has gone to trial, and it has resulted in a judgment -- though limited -- for the defense. 

In Garvey v. KMart Corporation (N.D. Cal. Case No. C 11-02575), the plaintiff alleged that KMart violates Labor Code section 1198 and Industrial Welfare Commission Wage Order No. 7 by failing to provide suitable seating to cashiers.  The case went to trial in November on a class limited to cashiers employed at a single KMart store. The court summarized its holding as follows: 

“All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats,” according to the law in California. In this civil action, class counsel have failed to prove that the nature of the work reasonably permits the seating modification urged by counsel at trial. Possibly a different modification involving a lean-stool would be provable but this record does not support it.

Slip op. at 1.  

A few notes regarding the trial: Plaintiff called six live witnesses, and defendant called four. The court gave each side 12 hours for witnesses at trial; both sides finished with time to spare. The court found "no genuine commonality issues" at trial and denied defendant's decertification motion. 

After describing the cash register work stations and procedures in detail, the Court found that most work done by cashiers could be done while seated, but cashiers need to stand "many times over the course of an hour." Slip op. at 12. The Court then found that class counsel's proposal -- re-arranging the work space to allow a stool to be stored under the counter in the register area -- would be "too unsafe, too inefficient, and too inconvenient to customers and cashiers."  Slip op. at 13-17.  

Next, the Court discussed -- and criticized -- a "secret" KMart policy that any cashier would be given a seat if he or she asked for one. The Court spoke critically of KMart's defense at several points. Perhaps because the Court felt annoyed by KMart's alternate efforts to use the policy as a defense and then to keep it out of evidence at trial, the Court held: 

After all of Kmart’s machinations, it would be poetic justice to hold Kmart to the full implications of its so-called policy, namely to hold that providing a seat in the existing configuration would be safe and practical. This would, however, not be actual justice, nor actual safety.

Slip op. at 18. 

The Court then took the highly unusual step of setting forth what it called "the best case for a plaintiff class." Slip op. at 18.  In the Court's view, this would involve the use of "lean-stools" that "allow an individual to place most of their weight on a supported seat, while remaining in a more upright, leaning position." Slip op. at 18-20. 

The Court then held that KMart "has a genuine customer-service rationale for requiring its cashiers to stand": 

[I]t is reasonable for Kmart to require its cashiers to stand while processing customers out the door so as to maximize the efficiency of the process and to project to its customers an attitude of efficiency and readiness to assist customers. 

Slip op. at 20-22.  However, the Court held that this rationale "might (or might not) be compatible with the judicious use of lean-stools."  Slip op. at 22.  

Finally, the Court noted that the litigation regarding the single store at issue at trial is "over and ready for appeal."  Slip op. at 22.  

As for all other Kmart stores in California, counsel could not agree as to whether the result in this trial should not control (Kmart counsel particularly refused to agree), so we must proceed to consider certification of classes covering one or more other stores in California and then to try those cases. 

Subsequent trials presumably will focus on what the Court called "the best case for a plaintiff class." 

Please email me here if you would a copy of the decision.