New Kmart Seating Class Certified in California

     (CN) – A Kmart cashier who worked at a store in Southern California can represent a class who were denied seats, but there will be no statewide class, a federal judge ruled.
     Collette Delbridge is now the class representative for cashiers at a Kmart in Redlands, Calif., according to the ruling. She had intervened after a federal judge found that Kmart did not violate the rights of a class, led by Lisa Garvey, by failing to provide seating at a location in Tulare, Calif.
     Garvey had noted that California’s wage order, 7-2001(14), provides: “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 concluded in that December 2012 ruling, however, that modifying the store to give cashiers seats would be “too unsafe, too inefficient, and too inconvenient to customers and cashiers.”
     Though Alsup certified Delbridge as a class representative for a new arm of the lawsuit last week, Sabrina Cline, who worked at a Kmart in Petaluma, Calif., was less successful.
     Cline lacks standing because she failed to list and disclose her claim against Kmart in a 2012 bankruptcy proceeding, according to the ruling.
     “As a result, her claim in this action belongs to the bankruptcy estate,” the 14-page ruling states.
     As for Delbridge’s representation of a Redlands class, Alsup said he would not “stretch the Tulare trial over the entirety of these proceedings.”
     “The Tulare trial record is not representative of other stores,” Alsup wrote. “It otherwise suffices to note that plaintiffs have submitted a declaration from plaintiff Delbridge stating that she believes that she could have performed her cashiering duties while seated. This creates genuine issues of material fact on the issues raised by Kmart as to cashiers who worked at the Redlands store.”
     Delbridge meanwhile objected to 400 declarations Kmart provided from cashiers about the nature of their work. Most of the declarations are surveys pairs with disclosure forms, and another 15 are “Day in the Life” statements.
     Alsup seemed sympathetic to Delbridge’s objections.
     “The disclosure forms used by Kmart were, at best, a half-hearted attempt to convert legal language into a format comprehensible to a layperson,” he wrote. “The surveys appear to have been collected from the cashiers at their place of work, rather than in a neutral environment. Although the disclosure forms stated that filling them out was voluntary and no adverse action would be taken against the declarants, the context could have encouraged Kmart’s employees to overstate their zeal for their work. Thus, given the manner in which the surveys were collected, the accuracy of the information is suspect. And, the ‘Day in the Life’ declarations are particularly problematic since they attempt to convey that Kmart cashiers work
     long and hard without ever wishing for a stool – but were clearly drafted by attorneys.”
     He refused to strike the declarations, however, after concluding that “Kmart’s method of gathering and preparing the cashier declarations and surveys was not fundamentally coercive or misleading.”
     Alsup nevertheless barred the company from further communicating with class members regarding the lawsuit and from engaging in evidence-gathering involving communications with them until after judgment.
     In certifying Delbridge as representative for other workers at the Kmart in Redlands, Alsup noted that Kmart had devoted “its class certification opposition to battling a potential statewide class. To the extent that its arguments can be translated to a class limited to a single store, they fall flat.”
     Counsel has until June 20 to identify class members and submit a list of names, agreed-on form of class notice, and plan of dissemination and time table.

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