By Kim Silvers, SPHR-CA
A new twist has been added to the California employment scene. Employers who are not up to speed on their Industrial Wage Order (IWO) requirements may find themselves in court for violation of a little known requirement that employees be provided suitable seats when the nature of the work reasonably permits seating. In a noteworthy case, a CA appellate court ruled that employees could claim monetary damages from the employer (99 Cents Only Stores) for its alleged failure to provide such seating for its employees. Similar lawsuits have also been filed against Home Depot and Target Stores.
The class action suit brought forward by a representative cashier, Eugina Bright, against 99 Cents Only Stores claimed that the employer violated the following requirement from the Industrial Wage Order (IWO #7 , section 14):
(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of such seats.
(B) When employees are not engaged in the active duties of their employment and the nature of their work requires standing, an adequate number of suitable seats shall be placed in proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.
Don’t stop reading because you’re not a retailer. This case isn’t just about seating in retail stores. This IWO requirement exists in many Wage Orders. What is particularly concerning about this case is the Appellate Court’s allowance that violations of the IWC may now be brought as a claim under California’s Private Attorneys General Act or 2004 (PAGA). In the past, only CA Labor Code violations (not IWOs) were permitted for this type of claim. Under the PAGA, civil penalties for Labor Code violations (and now IWO violations) can be collected by aggrieved employees. The PAGA penalties are up to $100 per pay period for each employee for the initial violation and $200 per pay period for each employee for subsequent violations. Seventy five percent of the civil penalties are turned over to the State of California and 25 percent are awarded to the aggrieved employee(s). Of course, start multiplying this penalty per employee in a class action suit and the dollars rack up quickly.
The Industrial Wage Orders are lengthy and contain many requirements for employers. Many of these are focused around wage and hour requirements. However, there are many other obscure work rules included in the IWOs. As this new “revenue stream” is opened for employees to gain “justice” for employers’ violations it is important that employers familiarize themselves with the wage order for their business. A list of the 17 IWOs and which industries or jobs they apply to may be found at https://www.dir.ca.gov/IWC/wageorderindustries.htm. If you’re not sure which IWO applies to your firm please give us a call. And ensure your IWO is posted with your other employment postings – it’s a requirement.