Retail store operators might want to sit down for this one — if they can find a chair.
Nearly every national chain is under legal attack in California for failing to provide "suitable seating" for cashiers and other employees who are expected to spend most of their work day on their feet.
Enterprising trial attorneys by the dozen are using an obscure California labor law requiring retailers such as such as Wal-Mart, Home Depot and Target to have enough seats on hand for their workers.
Superficially, the allegations appear to be little more than a nuisance.
But armed with two recent appellate decisions that allow workers and their lawyers to use California's novel "private attorney general" provision, the retailers are facing millions of dollars in damages. A first violation calls for as much as $100 per employee per pay period and double that for subsequent violations.
Lawyers say those penalties add up for big-box retailers that employ hundreds of thousands of Californians.
"We are really in unchartered waters," said Eric Steinert, an attorney who represents several of the retailers. "But there's no doubt there's a wave of lawsuits being filed. You are seeing some attorneys moving into this area who previously didn't pay attention to workplace issues."
Steinert said some of the first lawsuits were filed in 2009 and are based on an obscure provision of the labor code referring to an order issued by the Industrial Welfare Commission.
"All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats," the provision states. "When employees are not engaged in the duties of their employment and the nature of the 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."
The first of the two key appellate decisions turning that phrase into law was issued in November. The stampede to the courthouse began shortly afterward. Lawyers predict that more than 100 such lawsuits have been filed throughout the state.
The first appellate ruling overturned a lower court's decision tossing out Eugenia Bright's lawsuit against 99 Cents Only Stores.
The company's lawyers argued that the phrase wasn't a law because it doesn't expressly prohibited retailers from failing to provide "suitable seating." It read the passage as a suggestion rather than binding law. A trial court judge in Los Angeles agreed and tossed out Bright's lawsuit.
The appeals court based in Los Angeles disagreed and a unanimous three-judge panel said interpreting the provision as merely a suggestion "would be contrary to common sense."
The California Supreme Court refused to review the decision and it is now the law. Bright said her lawsuit could encompass more than 1,000 current and former company workers.
A second appellate court decision in a lawsuit filed by a Home Depot clerk met a similar fate in December. The court tossed out Home Depot's argument that the provision was a mere recommendation and relied heavily on the Bright decision to reaffirm the suitable seating law.
"The argument's central flaw is that it demotes mandatory labor conditions in wage orders to simple recommendations or advice when the conditions are stated in affirmative terms," Justice Nora Manella wrote for the unanimous three-judge panel.
Angela Church, a Gamestop Inc. clerk in San Bernardino County, was among the first to sue after the appellate court's rulings, filing a lawsuit in December alleging it required her to "work without being provided adequate seating during work hours."
Church and her attorney Kenneth Gaines of Woodland Hills didn't return phone calls.
Lawyers for retailers now say the next battle is over defining "suitable seats" and determining appropriate damages when stores fail to meet the standard.
The provision calls for a seat "placed in reasonable proximity," but leaves it to the employers discretion. Lawyers are advising clients to place one chair at each cash register.
Labor advocates said the provision was placed on the books to protect low-paid employees and was part of a package setting minimum wages, maximum hours and standard conditions of employment.
Tort reformers, though, complain the legal trend fosters the perception that California is a tough state to conduct business.
The California Supreme Court in February, for instance, launched yet another class action blizzard when it ruled it illegal for clerks to ask customers for ZIP codes when making credit card purchases.
"Why can't we just give the employee a chair rather than filing a lawsuit," said Tom Scott, California Citizens Against Lawsuit Abuse. "Battling bad lawsuits loses good jobs."