$15 Million settlement in only PAGA action for suitable seating.

Following the Supreme Court’s decision in Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1, 201 Cal.Rptr.3d 1 superior court approved a $15 million settlement in Garrett v. Bank of America, which alleged that California bank tellers should have been provided seats while they performed their jobs.

In this pure PAGA action, upon settlement, $5 million (1/3 of the settlement) plus litigation costs went to plaintiffs’ counsel and 75% to the LWDA and 25% to the aggrieved employees.

Superior Court reaffirmed the principles of Kilby which guarantees workers throughout California the right to “suitable seating” at their workstations when the nature of their work reasonably permits the use of a seat.

As explained in Kilby,

(1) the “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.

(2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics.

(3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.