Brown v. Wal-Mart: 9th Cir.’s First Application of Kilby a Welcome Sign for Certifying Seating Claims

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Last month, the Ninth Circuit applied the “suitable seating” framework from the California Supreme Court’s opinion in Kilby v. CVS Pharmacy, Inc., No. S215614 (Cal. April 4, 2016), for the first time in Brown v. Wal-Mart Stores, Inc., an unpublished decision. No. 12-17623 (9th Cir. June 8, 2016) (slip op. available here). Brown involved the Court of Appeals’ review of the district court’s grant of certification of a class of cashiers employed by Wal-Mart in California. In Kilby, the California Supreme Court answered questions certified by the Ninth Circuit involving California wage order requirements that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Cal. Code Regs., tit. 8, § 11040, subd. 14(a) (Wage Order No. 4-2001) (Kilby previously covered on the ILJ here). After the California Supreme Court weighed in on the Kilby questions, the Ninth Circuit reversed and remanded two seating cases that were on appeal following denials of class certification: Kilby, No. 12-56130 (S.D. Cal. May 31, 2012, D.C. No. 09-cv-2051-MMA-KSC) and Henderson v. JPMorgan Chase Bank NA, No. 13-56095 (C.D. Cal March 4, 2013, D.C. No. 2:11-cv-03428-PSG-PLA).

In Brown, the Ninth Circuit applied the Kilby framework, affirming the lower court’s order granting certification. Wal-Mart had challenged the district court’s decision to certify the class, arguing the court had abused its discretion in finding that the requirements of commonality and predominance were met. See Fed. R. Civ. P. 23(a)(2) and 23(b)(3). Regarding commonality, the Ninth Circuit found the district court had not abused its discretion based on the lower court’s finding that both a common policy and a common nature of work were applicable to the proposed class, that is, that Wal-Mart had a common policy of not providing cashiers with seating, that cashiers spent the majority of their time working at registers, and that the work done by cashiers at registers was generally the same across variations in the stores, locations, and shifts. See slip op. at 2-3.

The Court of Appeals also noted that the district court’s consideration of whether cashiers spent the “majority” of their time working at register was inconsistent with Kilby, since the California Supreme Court rejected this “holistic approach” in favor of a more narrow analysis into each subset of tasks that employees were expected to perform in a particular location within the workplace. See slip op. at 3 n.1. However, since the Kilby interpretation would have been more beneficial for the plaintiffs than the “holistic approach” used by the district court and the district court had certified the class anyway, the Ninth Circuit found the application of the wrong legal standard to have been harmless error. Id. As to the predominance inquiry, the Ninth Circuit also found the district court had not abused its discretion based on the court’s conclusion that “a trier of fact could determine whether these common tasks could reasonably be performed while seated, and such a determination would apply to all Wal-Mart cashiers at its California stores,” since the answer to this question would determine whether Wal-Mart violated the Wage Order’s suitable seating provision as to all class members. Id. at 3-4.

The panel further noted that the plaintiffs’ claim under California’s Private Attorneys General Act (“PAGA”) does not require an individualized penalty assessment that would defeat certification. Slip op. at 4. The Ninth Circuit’s wording on this last issue apparently caused the defendants concern, as they have now filed a petition seeking rehearing en banc, despite the fact that the Brown decision is unpublished. Wal-Mart’s petition (available here) states that the panel’s conclusion failed to provide clear guidance and could lead to an expansive interpretation of PAGA that would permit aggregate penalties without any sort of individual assessment. In the alternative, Wal-Mart requests the court to grant rehearing and remand for reconsideration on the grounds that the Ninth Circuit’s reasoning that the Kilby framework appeared to be more beneficial for the plaintiff fell short of the “rigorous analysis” required by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011).

The Ninth Circuit’s simple and straightforward application of the Kilby framework is a welcome sign of things to come for plaintiffs seeking to certify seating claims.

Authored by: 
Brandon Brouillette, Associate