Wage and Hour Case Notes

• Publication year: 2022
• Author: Lauren Teukolsky

WAGE AND HOUR CASE NOTES

AUTHOR^*

Lauren Teukolsky

SUMMARY JUDGMENT INAPPROPRIATE WHERE EMPLOYER DID NOT TELL EMPLOYEES ABOUT AND PROVIDE SUITABLE SEATING AT WORK STATION

Meda v. Autozone, Inc., 81 Cal. App. 5th 366 (2022)

This decision provides much-needed clarity on the summary judgment standards governing suitable seating cases.

Plaintiff worked as a sales associate at an Autozone store for five months. She assisted customers at the parts counter and also worked the cash register. She estimated that she could perform about half of her work while seated. Both work stations were elevated and she could not sit at them using a normal desk chair; instead she needed a raised chair or stool. Autozone provided two raised chairs in the store, but plaintiff alleged that Autozone did not have a formal policy regarding employee seating. The chairs were kept in an area away from the cash registers and parts counter, and plaintiff believed she could not use them except as a disability accommodation.

Plaintiff filed a Private Attorney Generals Act (PAGA) lawsuit against Autozone for its alleged failure to provide suitable seating under section 14 of Wage Order 7-2001, which provides: ""All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." Autozone moved for summary judgment, arguing that plaintiff was not "aggrieved" under PAGA, because it provided her with two raised chairs that she could have used. The trial court granted summary judgment, but the Court of Appeal reversed, finding there was a triable issue of fact as to whether Autozone had "provided" suitable seating under the Wage Order.

The Court of Appeal held that where an employer has not expressly advised its employees that they may use a seat during their work and has not provided a seat at a workstation, the inquiry whether an employer has "provided" suitable seating is fact-intensive and involve a multitude of factors. In such cases, a grant of summary judgment to the employer is likely inappropriate.

COMPETING PAGA PLAINTIFF WHO OBJECTED TO PAGA-ONLY SETTLEMENT COULD NOT APPEAL SETTLEMENT APPROVAL IN FEDERAL COURT BECAUSE SHE WAS NOT A "PARTY"

Callahan v. Brookdale Senior Living Communities, Inc., 42 F.4th 1013 (9th Cir. 2022)

The Ninth Circuit handed a win to employers seeking to engineer reverse auctions in PAGA cases.

Callahan was represented in this action by Capstone Law APC. She filed a class action lawsuit against her former employer, Brookdale. One day before filing, she filed a PAGA notice with the Labor and Workforce Development Agency (LWDA), but did not allege a PAGA claim in her original complaint. Brookdale removed to federal court, and filed a notice of related case indicating that six related cases were already pending.

Callahan's case was not litigated. Instead, the parties stipulated that her class claims be dismissed; her individual claims be sent to arbitration; and that she be permitted to file a PAGA claim.

Callahan and Brookdale participated in a mediation and filed a notice of settlement. Three days later, a competing PAGA plaintiff named Neverson filed a notice of intent to intervene and object to the settlement. Before seeking settlement approval, Callahan filed an amended PAGA notice and an amended complaint so that her case encompassed all

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of the claims and all of the defendants named in the six previously-filed PAGA cases, including Neverson's.

Shortly after Callahan and Brookdale filed a joint motion for approval of the PAGA settlement, which was for $920,000, Neverson moved to intervene. The district court denied the motion and approved the settlement. Neverson appealed.

The Ninth Circuit held that the district court did not err in denying the motion to intervene. With respect to Neverson's argument that she was entitled to intervene as a matter of right under Fed. R. Civ. P. 24(a)(2), the court held that Neverson failed to prove the fourth element, which requires "that the applicant's interest must be inadequately represented by the parties to the action." Neverson and Callahan had the same interests in the litigation: to obtain PAGA penalties. Because their interests were the same, Neverson was required to make...