California Grocery Store Not Required to Provide Seating for Cashiers

Ralphs Grocery Co. was not required to provide seating for its cashiers, a California appeals court ruled, in an action brought under the Private Attorneys General Act (PAGA). The court also ruled that a plaintiff in a PAGA action is not entitled to a jury trial.

PAGA allows aggrieved employees to sue over alleged labor code violations on behalf of themselves and other employees by stepping into the shoes of state regulators to recover civil penalties. Seventy-five percent of the penalties that are recovered go to the state, and 25 percent go to employees.

The plaintiff worked as a cashier at a Ralphs store. She brought a PAGA action against the company on behalf of herself and other current and former cashiers, alleging that Ralphs violated an Industrial Welfare Commission wage order.

Under the wage order, all employees must be provided with "suitable seats when the nature of the work reasonably permits a seat." Furthermore, even when the nature of the work requires standing, an adequate number of seats must be "placed in reasonable proximity to the work area," and employees must be allowed to use those seats at times when it doesn't interfere with their job duties.

The trial court found that Ralphs had not violated the applicable wage order because the evidence showed that even when lulls occurred in a cashier's primary duties, the cashiers were still required to move about the store fulfilling various other tasks. The plaintiff appealed.

Cashiers Were Expected to Perform Other Duties

An expert testifying for Ralphs stated that he visited 15 Ralphs stores to observe cashiers at work, and the cashiers spent most of their time scanning items, interacting with customers and bagging groceries. He noted that cashiers had other duties as well, such as cleaning and stocking.

He further testified that when there were no customers, the cashiers would organize products or look for customers ready to check out—which is called fishing for customers. He said he saw cashiers standing idle at their stations for no more than 20 or 30 seconds at a time.

The plaintiff testified that she had been employed at Ralphs for 32 years and the last eight as a cashier. About 90 percent of her workday as a cashier would be spent at the register, she said.

Another cashier who had worked for Ralphs as a cashier for 30 years testified that he spent most of his workday in the cashier bay. When no customers were in line, he was supposed to clean, organize products or fish for customers.

The trial court relied on Kilby v. CVS Pharmacy Inc., a 2016 California Supreme Court decision, in concluding that the plaintiff failed to prove any violation of the wage order.

Based on Kilby, the lower court held that the relevant section of the wage order applies if there are lulls in operation while an employee is still on the job and is not actively engaged in any duties. However, the wage order does not require seats to be provided if doing so would interfere with employees' performance of their duties, the trial court said.

On appeal, the court noted that Ralphs expected its cashiers to take on other duties when no customers were in line. The plaintiff did not claim—and the evidence did not show—that any of the alternative duties could be carried out while seated.

No evidence suggested that Ralphs' expectations were unreasonable. Although employees sometimes did not engage in their expected job duties, their decision to remain at their stations rather than perform their other expected tasks did not constitute a lull in the operation of those other duties, the appellate court said.

Moreover, sitting near the checkout stations when there were no customers in line—instead of cleaning, restocking, assisting other departments or fishing—would interfere with the performance of the cashiers' other duties.

The court affirmed the trial court's decision that Ralphs did not violate the wage order.

Right to Jury Trial

The court also concluded that plaintiffs do not have a right to a jury trial in PAGA actions, which are essentially substitutes for administrative proceedings. Since PAGA plaintiffs stand in the shoes of the administrative agency, they possess the same right and interest as the agency does, the court said. An administrative agency enforcement action does not involve a jury trial.  

LaFace v. Ralphs Grocery Co., Calif. Ct. App., No. B305494 (Feb. 18, 2022).

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.