Walmart Must Face Trial in Seated Cashiers Squabble

SAN JOSE, Calif. (CN) – A trial will decide whether Walmart cashiers are entitled to sit down at work, a federal judge ruled Friday.

U.S. District Judge Edward Davila said too many facts are in dispute about whether the kind of work cashiers perform “reasonably permits the use of a seat” to decide the case without sending it to trial.

Walmart cashier Nisha Brown originally filed the class action lawsuit in 2009. In 2012, U.S. District Judge Edward Davila certified a class of 80,000 cashiers, but Walmart appealed the ruling. The Ninth Circuit waited until 2016 to affirm, pending the outcome of another class action involving seating for employees, Kilby v. CVS.

In April, Davila denied Walmart’s motion to decertify the class, finding it did not present any new evidence to compel him to revisit his 2012 order. Instead, he said it merely rehashed an old argument that the work cashiers perform varies too much by store for the class to meet the typicality and commonality requirements for certification.

“[T]he proper question is whether Wal-Mart has identified a subsequent development in the law or the evidence to justify revisiting class certification on its merits,” Davila wrote in his April 27 ruling. “Under that standard, Wal-Mart does not have a leg to stand on.”

In dueling motions for judgment, both sides presented differing experts on the productivity of a seated cashier versus a standing one, and whether seated cashiers are more prone to injury.

Walmart also presented a study by Dr. Jerry Wind, a professor at the Wharton School of the University of Pennsylvania, whose survey of 1,209 California Walmart shoppers suggests a preference for standing cashiers, whom customers perceive as more friendly and efficient. Of course, the cashiers challenged Wind’s study, claiming the video footage he relies on does not show actual California customers, but Walmart employees in Arkansas posing as shoppers.

It falls to Davila to resolve these disputes, using the analytical framework in Kilby, in which the California Supreme Court unanimously ruled that employees are entitled to a seat when their jobs permit it.

The Kilby ruling clarified a standard promulgated by the now-defunct California Industrial Welfare Commission that requires an employer to give weight to all pertinent factors when deciding if employees should be permitted to sit. This includes determining whether providing a seat would impact the employee’s overall job performance.

Davila referred to that framework in his Friday ruling. “Noting the IWC’s conscientious choice of a broad reasonableness standard, the Supreme Court emphasized that the inquiry depends on a flexible, qualitative assessment of the totality of the circumstances,” he said.

At trial, Davila will have to sort through competing evidence of the various tasks cashiers perform – such as operating the register and item scanner, processing payments and bagging items – and determine whether it makes sense to do these tasks seated.

Both sides offer contrasting depictions of this work. For example, cashier Marcia Ungles testified in her deposition that she stands to scan items in only three out of ten transactions. Meanwhile, Walmart contends that cashiers must stand regularly to pick up and bag items.

In its motion for summary judgment, Walmart also tried to avoid trial by challenging the enforceability of IWC’s wage order, which says, “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

Davila rejected this argument. The state Legislature may have defunded the commission in 2004, but its wage orders live on through the Department of Industrial Relations, which enforces California’s labor laws.

Trial is set for October 2018. Neither attorneys for the class nor Walmart responded to emails seeking comment.

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