Are seating cases the next wave in California wage and hour class actions? Several prominent retailers have faced litigation from cashiers who want on-the-job seating

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All of us have been to supermarkets, drugstores and department stores where the cashiers stand at their checkout stations. But could this be a violation of law? Should the employer be obligated to provide seating for its cashiers? Recently this claim was tried in federal court in San Francisco and the judge ruled that seating was not required for a group of Kmart cashiers. The ruling, however, was not definitive, and the case is worth considering.

At the center of the case is a California administrative regulation, which states: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” The regulation clearly invites litigation, as who is to say whether, in the case of a cashier at a grocery store or drugstore, the “nature of the work” would “reasonably” permit the cashier to use a seat? This ambiguity has led to several lawsuits in California against prominent retailers such as CVS Pharmacy and Kmart.

Originally published in InsideCounsel on June 24, 2013.

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