Wage and Hour Case Notes

• Publication year: 2022
• Author: Nicole R. Roysdon

WAGE AND HOUR CASE NOTES

AUTHOR^*

Nicole R. Roysdon

CALIFORNIA COURT OF APPEAL FINDS NO RIGHT TO JURY TRIAL IN PAGA ACTION AND CLARIFIES SUITABLE SEATING STANDARD

LaFace v. Ralphs Grocery Co., 75 Cal. App. 5th 388 (2022)

Resolving an issue disputed in PAGA cases for almost 18 years, the California Court of Appeal recently held there is no right to a jury trial in a PAGA action. The appeal arose after the trial court granted the employer's motion for a bench trial after finding PAGA actions were equitable in nature and not triable to a jury. The Court of Appeal agreed, holding a plaintiff in a PAGA action has no constitutional right to a jury trial because a PAGA action is not similar in nature or in the same class as any common law cause of action that existed at the time the right to a jury trial became part of California's Constitution in 1850. This is because PAGA plaintiffs are only proxies for the state, bringing what would have been an administrative regulatory enforcement on its behalf. Since they are subject to the same legal rights and interests of the state, and the state would not be entitled to a jury trial in such an enforcement action, PAGA plaintiffs are not entitled to one either in a PAGA action. In addition, PAGA's penalty provisions are subject to several equitable factors which are typically undertaken by a court and not a jury. Finally, some of the Labor Code provisions that form the basis for a PAGA claim did not exist at common law.

On the merits, the Court also held the plaintiff's employer, a grocery store, was not required to provide seats to plaintiff and her fellow cashiers. The plaintiff argued her employer violated section 14(B) of Industrial Welfare Commission (IWC) Wage Order No. 7-2000 by not providing seats to cashiers, whose job requires standing, when the use of seats did not interfere with their duties. The trial court found the employer had not violated section 14(B) of the Wage Order because the evidence showed that even during "lulls in operation" when the cashiers were not checking out customers, they were still required to fulfill other duties, such as cleaning, restocking, assisting in other departments, or "fishing" for customers, that required standing and could not be performed while sitting.

In affirming the trial court's ruling, the Court of Appeal relied on the California Supreme Court's guidance in Kilby v. CVS Pharmacy, Inc., 63 Cal. 4th 1 (2016), that section 14(B) entitles an employee to a seat during "lulls in operation" when the employee is still working but is not actively engaged in duties and sitting does not interference with the performance of the employee's duties. Applying this guidance, the Court found a cashier's decision to remain at the check stand when there were no customers, rather than engaging in their other expected duties, did not constitute a lull in operations. Further, sitting at the check stand when there were no customers in line would interfere with cashiers' ability to perform their other duties. The Court rejected the plaintiff's claim that employers could avoid providing a seat to their employees by arguing they were always expected to be busy, noting that Kilby made clear an employer's preference for standing was not controlling and that the inquiry is an objective one that takes into account the employer's reasonable expectations regarding customer service and its role in setting job duties. With these considerations in mind, the Court found no error in the trial court's interpretation of Section 14(B) because the evidence presented from both parties' witnesses, and not just the employer's preferences, established cashiers were expected...