Some Damn Expensive Seating!

A California appellate court just granted a class action opportunity against 99 Cents Only Stores which I believe will invite a number of copycat claims. It boils down to this: If 99 Cents Only Stores didn’t provide its employees with seats they can sit on when nobody needs help or nothing needs to get done (when, I ask, is that?) then they have violated the Labor Code and can be assessed a penalty of $100-$200 per pay period. Figure 25 pay periods per year and for every employee you are looking at roughly $5,000 in penalties per year for up to 3 years! Even if each store has only 5 employees/day subject to the suit my math says the award can be as high as $75,000 per store…not including the inevitable attorney fees! Again, unless my math is way off, the total penalty can be as high as $15,000,000. For not supplying employees at a retail establishment with seats. According to their website they have over 200 stores in California. Now you can see why an attorney may be interested in what seems like a trivial matter.

Here’s what the Wage Order states:

Wage Order No. 7, subdivision 14 provides: “(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. [¶] (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

Here’s what the Labor Code penalty provision states:

Section 2699, subdivision (f), which was added in 2003, provides in pertinent part: “For all provisions of this code except those for which a civil penalty is specifically provided, there is established a civil penalty for a violation of these provisions, as follows: … (2) If, at the time of the alleged violation, the person employs one or more employees, the civil penalty is one hundred dollars ($100) for each aggrieved employee per pay period for the initial violation and two hundred dollars ($200) for each aggrieved employee per pay period for each subsequent violation.”

But of course…

The trial court has discretion to award less than the maximum amount of the civil penalty if “to do otherwise would result in an award that is unjust, arbitrary and oppressive, or confiscatory” in the circumstance of the particular case. (§ 2699, subd. (e)(2).) Let’s hope they use that discretion in this case.

So, my question is: Did 99 Cents Only really say, “Sorry, you can’t have seats?” I can’t believe it was because of the cost. They can probably get them from China, like everything else they sell, for 10 bucks each. Did they do that so employees worked on something instead of sitting down? Or did they say “no” for no good reason? Was it really a corporate-wide policy that somebody thought about in advance? How many people complained and what was the response like? So many questions!

I can see many employers being exposed to this exact same claim. Hopefully you are not one of them! You can read the case by going to http://www.courtinfo.ca.gov/opinions/documents/B220016.PDF.