On February 18, 2022, the California Court of Appeal issued its decision in Jill LaFace v. Ralphs Grocery Company, __ Cal. App. 5th __ (2022), that provides important guidance in two areas. First, the Court made clear that plaintiffs asserting a claim under the Private Attorneys General Act (PAGA) are not entitled to a jury trial. In addition, the Court affirmed the lower court’s ruling rejecting the plaintiff’s suitable seating claim and found that an employee cannot create a “lull in operation” to trigger the provision of a seat by remaining idle instead of performing other expected job duties.
Background of LaFace v. Ralphs
Plaintiff Jill LaFace worked as a cashier at a Ralphs grocery store. She testified that about 90 percent of her workday as a cashier was spent at the cash register. She claimed that during the times when she was not busy at the cash register she should have been provided a seat on which to sit pursuant to a “suitable” seating requirement under the applicable California Wage Order. She brought an action under PAGA on behalf of herself, other current and former Ralphs cashiers, and the State of California.
The trial court initially set the matter for a jury trial, but later granted Ralphs’s motion for a bench trial. The court then conducted a 12-day bench trial and ruled in favor of Ralphs. LaFace appealed both the trial court’s determination that she was not entitled to a jury trial and the trial court’s ruling on the merits of her suitable seating claim.
No Right to Jury Trial for PAGA Plaintiffs
On the issue of whether PAGA plaintiffs are entitled to a jury trial, the Court affirmed the trial court’s determination that they do not have such a right. In reaching this conclusion, the Court resolved a debate that has occurred among trial courts at both the state and federal level since the inception of PAGA.
The Court of Appeal based its decision on “several unique features” of PAGA that make it unsuitable for a trial by jury. First, a PAGA plaintiff like LaFace is merely a proxy for the State of California and brings what would otherwise be an administrative regulatory enforcement action on the State’s behalf. If the State had brought the regulatory enforcement action on its own behalf, the action would be subject to various rights and interests set forth in statutory language of PAGA. That language does not include a right to a jury trial. If the State itself does not possess a jury trial right, it would not make sense to give the state’s proxy, i.e., a PAGA plaintiff, a jury trial right.
Second, although PAGA specifies that certain penalties are recoverable in the event that violations are proven, PAGA allows a court to award less than the maximum amount of penalties if, based on the facts and circumstances of the particular case, it would be unjust, arbitrary and oppressive, or confiscatory to do so. Therefore, the penalties recoverable under PAGA are subject to various equitable factors, and these factors require qualitative evaluation and weighing that are typically performed by judges and not juries.
Finally, the Labor Code concerns itself with a wide range of rights “unknown at common law,” such as the suitable seating rights, wage statement requirements, etc. Because these rights are “novel” and unknown at common law, they do not fall within the types of claims for which the California Constitution historically provided a right to a jury trial. Considering all of the above factors, the Court concluded that a PAGA plaintiff does not have a right to a trial by jury.
Cashier’s Idling at Checkstand between Customers, in Lieu of Performing Other Expected Duties, Was Not a “Lull in Operation” That Triggered the Seating Requirement
Notwithstanding the jury trial issue, the merits of the case involved LaFace’s allegation that Ralphs failed to provide her with suitable seating in her job as a cashier in violation of the applicable Wage Order. The Wage Order has two suitable seating components. First, it requires that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A), 11070, subd. 14(A) (Wage Order No. 7-2001) (“Wage Order”). Second, it provides that, “w[hen employees are not engaged in the active duties of their employment and the nature of work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and the employees shall be permitted to use such seats when it does not interfere with the performance of their duties.” Wage Order subd. 14(B). Although LaFace initially alleged that Ralphs violated both of these seating requirements, she abandoned her claim as to the first component on her appeal, and thus the appeal concerned only whether Ralphs violated the second provision on the Wage Order.
In Kilby v. CVS Pharmacy, Inc., 63 Cal.4th 1 (2016), the only reported decision to discuss the requirement in subdivision 14(B), the California Supreme Court held that the requirement applies during “lulls in operation” when an employee, while still on the job, is not then actively engaged in any duties. Although subdivision 14(B) is its own requirement separate and apart from subdivision 14(A), the two provisions are interrelated. Summarizing the relationship between the two components, the Kilby court concluded that if an employee’s actual tasks at a discrete location make seated work feasible, she is entitled to a seat while working there pursuant to 14(A); however, if other job duties take her to a different location where she must perform standing tasks, she would be entitled to a seat during “lulls in operation” pursuant to 14(B).
In LaFace’s case, the parties generally agreed that, when cashiers were not checking out customers, Ralphs expected them to be cleaning, restocking, and “fishing for customers” (looking for customers who were ready to check out). The parties, however, disagreed whether these expected activities constituted “lulls in operation” that required seating under 14(B). The Court of Appeal framed the issue as “whether the absence of customers in line constituted a lull in operation” under the suitable seating provision. The Court ruled it did not qualify as a lull in operation.
The Court observed that, under Kilby, an employer may define the duties to be performed by an employee. LaFace conceded that Ralphs expected her and other cashiers to clean, restock, assist in other departments, or “fish” for customers while they were not actively checking out customers, and she did not argue that these expectations were unreasonable. In view of the Court, although some cashiers did not engage in these alternative activities while they were not actively checking out customers, their decision to remain idle at their checkstands rather than perform those expected alternative tasks does not constitute a lull in the operation of those other duties. Furthermore, sitting in or near the checkstands when there are not customers in line would interfere with the performance of the cashiers’ other duties, i.e., cleaning, restocking, assisting other departments, or fishing for customers, and the suitable seating requirement does not require a seat when it would cause such interference. The Court therefore affirmed the trial court’s ruling in favor of Ralphs that no seat was required under 14(B).
For all employers and businesses, the holding that PAGA plaintiffs are not entitled to a jury trial is favorable because of the advantages associated with bench trials. Employers should consult their employment counsel to consider whether (1) to seek a bench trial in cases that involve only a claim under PAGA and/or (2) to seek a separate bench trial as to the PAGA claim in cases involving both PAGA and non-PAGA claims.
For employers and businesses in the grocery and retail spaces, this case provides an example of the limits of the suitable seating requirement. Because seating requirements are fact and circumstance specific, employers should consult their employment counsel to determine whether they must provide seats to their employees and in litigating these types of claims.