Thursday, December 23, 2010

Second District Again Holds That Wage Order 7's “Suitable Seating” Provision is a Mandatory Labor Requirement Subjecting Employers to PAGA Penalties: Home Depot U.S.A., Inc. v. Superior Court

On December 22, 2010, the Second District, Division 4, joined its sister division’s conclusion in Bright v. 99¢ Only Stores, 189 Cal. App. 4th 1472 (2010) that Wage Order 7’s "suitable seating" requirement (8 CCR 11070(14)) imposes a mandatory labor requirement that is governed by the enhanced PAGA penalty ascribed by Labor Code section 2699(f). See Home Depot U.S.A., Inc. v. Superior Court, __ Cal. App. 4th __ (2010).

Relying largely on the analysis in Bright (discussed in a previous post contained here), the Court denied Home Depot’s petition for writ relief from the trial court’s order overruling demurrer to plaintiff’s PAGA claim (predicated on Home Depot’s alleged failure to provide seating to employees at cashier and counter areas):
On November 12, 2010, while Home Depot’s petition was pending before us, Division Five of this district held that the default remedy stated in section 2699, subdivision (f), encompasses violations of section 1198 based on the seating requirement in Wage Order 7-2001. (Bright v. 99¢ Only Stores (2010) 189 Cal.App.4th 1472 (Bright).) We agree with this conclusion. Subdivision (f) of section 2699 establishes civil penalties for violations of “all provisions of [the Labor Code] except those for which a civil penalty is specifically provided.” As we elaborate below, section 1198 meets this description: an employer’s failure to provide seating under Wage Order 7-2001 is unlawful under section 1198, but no civil penalty for such conduct is “specifically provided” in section 1198 or elsewhere. Accordingly, violations of this type are subject to the default remedy stated in section 2699, subdivision (f).
See Slip Opinion, at 7-18.

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