Two recent decisions, Bright v. 99¢ Only Stores, 189 Cal. App. 4th 1472 (2010) and Home Depot U.S.A., Inc. v. Superior Court, 191 Cal. App. 4th 210 (2010), reflect the latest attempt by plaintiffs to capitalize on the Labor Code Private Attorneys General Act of 2004 ("PAGA"), a statute that enables "aggrieved" employees to sue their employers for potentially staggering civil penalties. Under the PAGA, aggrieved employees may recover civil penalties on behalf of themselves and other aggrieved employees by proving violations of the Labor Code. Lab. Code § 2699 et seq. Significantly, the Bright and Home Depot cases hold that PAGA civil penalties are now available when an employer violates the regulations set forth in the Industrial Welfare Commission's ("IWC") Wage Orders, which include numerous technical provisions such as the "suitable seating" provision at issue in these cases.

In Bright v. 99¢ Only Stores, the plaintiff, a store cashier, filed a class action complaint against 99¢ Only Stores, claiming that the retailer had failed to provide appropriate seating in violation of California's Wage Orders. The section of the Wage Order at issue provides that "[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." The plaintiff argued that her employer's violation of this seating requirement also constituted a violation of Labor Code section 1198, which makes it unlawful for an employer to violate a "standard condition of labor fixed by the commission." Thus, the plaintiff argued, civil penalties were available under the PAGA. The Court of Appeal agreed.

About a month later, the Court of Appeal issued another decision, Home Depot U.S.A., Inc. v. Superior Court, in which it again concluded that employees can bring a private cause of action under the PAGA based on underlying violations of the Wage Orders. As in Bright, the plaintiffs in Home Depot asserted that Home Depot had failed to provide suitable seating to cashiers in violation of California's Wage Orders and thus were entitled to recover civil penalties under the PAGA. As in Bright, the Court of Appeal held that the plaintiffs could assert claims under the PAGA for alleged violations of the Wage Orders, when the Wage Orders were read in conjunction with Labor Code section 1198.

While the Court of Appeal did not make any determinations on the merits in either Bright or Home Depot, these cases represent a new breed of representative actions against retailers based on the suitable seating provisions contained in California's Wage Orders. Moreover, these decisions may provide ammunition for plaintiffs to file representative lawsuits based on alleged violations of other relatively obscure workplace regulations contained in the Wage Orders, including requirements regarding workplace temperatures, changing rooms, resting facilities, elevators, and the like. In light of the potentially significant liability posed by such lawsuits, California employers should reexamine their workplace policies and practices to ensure their compliance with even seemingly minor requirements of California's Wage Orders.

This article was prepared by Michael S. Chamberlin (mchamberlin@fulbright.com or 213 892 9284) and Julie Chen (jchen@fulbright.com or 213 892 9270) from Fulbright's Labor and Employment Law Practice Group. If you have any questions regarding this or any other California employment law issue, please contact Mr. Chamberlin, Ms. Chen or Marcus A. Torrano (mtorrano@fulbright.com or 213 892 9292).