In Bright v. 99¢ Only Stores, 118 Cal. Rptr. 3d 723 (Cal. Ct. App. 2010), the California Court of Appeal held that the so-called “suitable seating requirement” under Wage Order 7 exposes employers to liability for civil penalties under California’s Private Attorney General Act in addition to any statutory or compensatory damages. See Wage Ord. No. 7-2001, sub 14(A), available here.
The trial court sustained the defendant’s demurrer, which posited that because Wage Order No. 7 contains its own civil penalty provision, there could be no PAGA civil penalties, but the Court of Appeal reversed. Writing for the unanimous three-justice panel, Justice Kriegler observed that the Wage Order’s adequate seating provision does not in fact have its own civil penalty provision, and consequently, it is governed by subdivision (f) of PAGA.
Bright is a small, but significant, step in the development of the body of common law that will govern PAGA claims and a welcome counterbalance to decisions that seemingly regard PAGA claims as technical excrescences, rather than the valid and distinct claims they are. (See, e.g., Villacres v. ABM Indus., Inc., 117 Cal. Rptr. 3d 398 (Cal. Ct. App. 2010), which held that PAGA claims that had never been pleaded, litigated or released in a prior class action settlement were nonetheless barred by res judicata.)
Most importantly, Bright confirms that an employer that fails to provide the adequate seating required by Wage Order 7 is liable for an assessment of PAGA civil penalties, either in an action brought by the Labor Workforce Development Agency (LWDA) or in a private attorney general action brought by a private litigant. Significantly, too, PAGA representative actions are not required to be certified (per Arias v. Superior Court, 46 Cal. 4th 969 (Cal. 2009)), and therefore need not establish the familiar requisites of class treatment (numerosity, typicality, commonality, and adequacy).
The Court of Appeal’s opinion in Bright v. 99¢ Only Stores is available here.