Kmart Wins First Suit Over Cashier Seating


     (CN) - Kmart is not liable for failing to provide its cashiers in central California with "suitable" seats, a federal judge ruled after a one-week bench trial.
     Lisa Garvey sued the store's owner, Sears Holding Management, in April 2011, and the case later morphed into a federal class action against Kmart.
     Garvey alleged the big-box store violated California's wage order since Labor Code Section 1198 and Section 14(A) of Industrial Welfare Commission Wage Order 7-2001 provide that: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."
     A federal judge refused to order summary judgment against Kmart in April 2012, concluding that the wage order did not require employees to affirmatively request a seat. The decision also found that the wage order did apply to Kmart cashiers, and that there was a genuine issue as to whether Kmart cashier work reasonably permitted seats.
     Though Garvey had sought to represent 5,600 cashiers from 100 Kmart stores in California, the court narrowed that number to 71 cashiers from the Tulare location where Garvey worked.
     Tulare, with a population of 59,278 in 2010, is located in the heart of the state's central valley.
     This fall, the court found that Kmart failed to preserve and produce relevant evidence on cashiers' use of checkout registers. There was no sanction specified, however.
     Kmart competitors faced similar claims over the last year, but Garvey's was the first to go to trial in November.
     U.S. District Judge William Alsup ruled for Kmart on Tuesday.
     "At issue in this class action are the seven 'front-end' cashier stands located at the front of the Tulare store," Alsup wrote. "The checkout stands in question resemble checkout stands all of us have seen in modern times."
     Noting California's wage order, Alsup said that neither the Industrial Welfare Commission nor the California Labor Commissioner "has previously interpreted Section 14 as it might apply to the case in hand."
     The proposed addition of stools to the stands could present an "obstacle course," "inevitably lead to stumbles" and "be unsafe," the decision states.
     Redesigning the stands as proposed by class counsel "would be an unhappy match" between a floor mat and the legs of the stool, Alsup added.
     "In sum, this order rejects the proposed modification by class counsel as too unsafe, too inefficient, and too inconvenient to customers and cashiers," according to the 23-page findings of fact and conclusions of law. "Adoption of the proposed modifications would unreasonably interfere with Kmart's legitimate interest in providing quick and efficient customer service so as to compete with other big box stores."
     Though Alsup said lean-stools "seem to be the only possible candidate for seating that plausibly would be consistent with the job requirements," he refused to approve or order them.
     "Before even requiring such seating, the court would insist on hearing the views of cashiers, the ergonomics experts, safety experts, and Kmart management," Alsup wrote. "This would have to be in a trial involving a different class. The trial on this class at the Tulare store is over and finished."
     The judge also scolded Kmart for an abandoned policy over the use of seats.
     In the wake of a so-called "seating" lawsuit against one of its competitors, a Kmart human resources official adopted a "secret policy" that "any cashier in California Kmarts would be allowed to use a seat at the cashier stall if he or she asked for one," Alsup said.
     But the policy "was never reduced to a memo or email, or if it was, those were destroyed," Alsup said.
     "After all of Kmart's machinations, it would be poetic justice to hold Kmart to the full implications of its so-called policy, namely to hold that providing a seat in the existing configuration would be safe and practical," the ruling states. "This would, however, not be actual justice, nor actual safety. Even class counsel have conceded that a chair (or stool) cannot be safely used with the existing configuration." (Parentheses in original.)
     Though Garvey's case failed, Alsup acknowledged that additional cases must be considered and tried "covering one or more other stores in California."
     "One obstacle to further certification will possibly be that the only named plaintiff has now had her case resolved," Alsup said. "Arguably, she should not be a representative on behalf of cashiers at other stores. Assuming this could somehow be overcome, at follow-on trial(s), both sides are invited to present more complete evidence on a lean-stool alternative ... (or variations thereon), in addition to any other evidence counsel wishes to present." (Parentheses in original.)
     Alsup scheduled a case-management conference for Jan. 10.
     "Please do not ask to stay this case pending appeal," Alsup warned. "Useful work can be done before the next trial even if the trial itself turns out to be after the decision by the court of appeals on the Tulare store."