Settlement to Kmart Seating Case Approved

(CN) - Kmart can pay $280,000 to California cashiers who were allegedly denied "suitable" seats, a federal judge ruled, giving preliminary approval to a settlement.

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 claimed 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."

U.S. District Judge William Alsup refused, however, to order summary judgment against the store in April 2012, concluding 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 the work of Kmart cashiers 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.

In June 2013, Alsup certified Collette Delbridge to represent a class of cashiers from the Kmart in Redlands, Calif.

Last week, Alsup granted preliminary approval of the proposed settlement.

Terms require Kmart to pay $280,000 to cover a California Labor & Workforce Development Agency payment, class members' settlement shares, incentive awards for named plaintiffs and class counsel expenses.

Counsel is expected to seek reimbursement of $150,600, the five-page ruling states.

Tulare class members will receive a $100 settlement share on average, and Redlands members will receive about $150, according to the ruling.

"No class members shall receive a settlement share under $25 or over $200," settlement terms state.

Notice of the settlement must be mailed to class members by Sept. 23, and objections must be made in writing and postmarked by Nov. 22.

A class member's failure to opt out in a timely manner releases Kmart from "the claim that Kmart should have provided them with suitable seats while working at Kmart," including "all other claims for civil or statutory penalties ... all claims for lost wages and benefits, emotional distress, punitive damages and attorney's fees," according to the settlement terms.

Such release does not, however, include future claims.

Parties must move for final approval of the settlement by Nov. 29, Alsup ruled, and counsel must move for expenses and incentive awards to named plaintiffs by Jan. 3, 2014.

The motion for expenses and incentive awards is scheduled to be heard on Jan. 9, 2014.

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