Can California Cashiers Sit on the Job?

December 17, 2020, 8:45AM. By Jane Mundy

The debate over suitable seating for California employees –in this case, Ralphs Grocery Store and The Kroger Co.—is ongoing.

Sacramento, CAThe latest ruling over Ralphs Grocery Store seating for cashiers – initially filed in 2016— has reversed a trial court’s decision to link two California labor lawsuits that accuse parent company The Kroger Co. of not providing its employees with seating. On November 20, the California state appeals court found that cases implicating different job titles, time periods and claims could be litigated separately.

The trial court ruled that the complaint lodged by Ralphs employees John Yannoulatos and Jill LaFace (both checkers/cashiers) regarding seats for self-checkout cashiers is a continuation of another action brought by LaFace, which focused on seating for general cashiers. The three-judge panel found “no support in the record for the trial court's finding that the parties in both actions were identical," reported Law360.

PAGA Complaint

LaFace first filed a PAGA complaint against Ralphs in September 2016, and one month later “plaintiff filed the first amended complaint alleging a single cause of action for a violation of Labor Code section 1198, which bars conditions of labor prohibited by orders of the Industrial Wage Commission. She claimed that Ralphs and The Kroger failed to provide her and other cashiers/checkers with seats required by Code REgs. tit 8, sec 11040 section 14. She also alleged that the "cubicle area is sufficiently spacious to provide adequate room to provide a seat for a checker and/or cashier."

(PAGA allows private litigants to sue to recover civil penalties for violations of the state Labor Code. The plaintiffs’ bar brought a number of suitable-seating lawsuits under PAGA against California retailers, arguing that under section 14 of Wage Order 7-2001, front-end cashiers, pharmacy workers, and bank tellers, among other employees, are entitled to seats while working.)

Ralphs countered: it did not provide seating in the checkstands because of the "cashier's dynamic work," "the limited space within the checkstand for a seat," and the fact that "the space behind the cashier's area is often a passage way for the customers being serviced at the next checkstand."

Following a bench trial, the court found in favor of Ralphs. In January 2020 LaFace and petitioner John Yannoulatos filed a second PAGA action against Ralphs, this time alleging that Ralphs failed to provide seating for employees working in the self-checkout area. The second action was deemed related to the first and reassigned to the same judge.

LaFace and Yannoulatos argued that the second lawsuit includes an additional plaintiff (Yannoulatos), covers a different time period, and focuses on the failure to provide seating for self-checkout attendants—the first lawsuit never alleged that claim. Ralphs argued that the second lawsuit is merely a continuation of the first.

The case culminated in a 13-day bench trial before the Honorable Patricia Nieto, between November 12, 2019 and January 6, 2020. LaFace and fellow longtime cashier Yannoulatos testified during trial. It is undisputed that the parties did not present evidence at trial regarding the self-checkout area. On June 30, 2020, the court found that the cases were related and transferred the Yannoulatos case to Judge Nieto.

This is what is boils down to, as explained by casetext.com: Ralphs' central contention is that the two actions involved "identical" claims because LaFace included the issue of seating for self-checkout employees in the first lawsuit, but then "abandoned" that claim during discovery. Petitioners counter that LaFace focused only on regular checkstands and never "address[ed] the rights of employees who are assigned to the self-checkout station." The case is John Yannoulatos et al. v. Superior Court of Los Angeles County et al., case number B306989.

Despite the standards for “suitable seating” cases in California set by the California Supreme Court’s decision of Kilby v. CVS Pharmacy, Inc., employees' rights to suitable seating is still duking it out in courts. The obligations employers have to provide “reasonable” seating and employees who demand seats in certain situations appears to be ongoing…

Ralphs is a supermarket chain headquartered in Compton, California. During the time of litigation above, Ralphs operated more than 320 retail grocery stores, ranging in size from smaller than 10,000 square feet to larger than 85,000 square feet.