In 2004, California passed the Private Attorney General Act, more commonly known either as “PAGA” or the “sue your employer act.” PAGA permits employees to bring claims against their employer, essentially on a class basis, for civil penalties based on various parts of the California Labor Code. Although the act has been in force for eight years, few such cases have been tried, and most have settled due to myriad questions about the act and how it might apply in real practice.

A recent case, one of the first tried under PAGA, suggests that a plaintiff verdict is far from a foregone conclusion. In Garvey v. Kmart Corp., Case No. C 11-02575 (N.D. Cal. Dec. 18, 2012), the plaintiffs claimed that the company failed to provide “suitable seating” for cashiers as required by California law. They sought penalties under PAGA and also sought to represent all Kmart cashiers across the state. The court ultimately certified a class relating to a single store and a class of 71 cashiers.

The case was tried to the court and focused largely on the layout of cash register stations at the store. After analyzing the work area at length, the court found numerous practical difficulties involved with providing seating given the amount of space available, and the need for cashiers to move frequently to assist customers with larger items, bag items, or help customers to operate the “pin pad” for credit card and debit card transactions. Putting the physical layout aside, court also found that seating was inconsistent with the need for customer service and found that “cashiers work like whirling dervishes” while helping customers, and that  having the cashiers sit would not project “an attitude of efficiency and readiness to assist customers.”

The court ultimately concluded that the company need not provide seating for cashiers at the store. Due to disagreements among the parties and questions surrounding the named plaintiff, the court left open the question of whether there might be additional trials for cashiers at other stores.

The Garvey case demonstrates that while PAGA may be a vehicle for plaintiffs to bring claims against their employer in California, they must still succeed on the merits and, at least before this judge, some common sense may apply.

The bottom line: Employers can prevail on California PAGA claims at trial.