Many Walmart cashiers, 10,000 strong, are suing the store seeking the right to sit on the job. The store is contesting the case. The basis for the lawsuit is a wage order. These are directives promulgated by the Industrial Welfare Commission, a California state agency, which is authorized by the legislature to investigate various industries and promulgate rules establishing, among other matters, conditions of labor. Per California law, wage orders are given the same weight as statutes.
The wage order in question, known as Order 7, states,
The wage order applies to all employees, not just those who might be disabled. The rationale is this: “Humane consideration for the welfare of employees requires that they be allowed to sit at their work or between operations when it is feasible for them to do so.” The question in each work situation becomes whether the nature of the work reasonably permits the use of seats.
An employer’s mere preference that certain tasks be performed while standing is not controlling. Instead, an objective inquiry must be undertaken on whether tasks can be adequately performed from a seated position. Reasonableness is the ultimate determinant. Among the factors a feasibility study should review are: Whether seated work would impact the quality and effectiveness of overall job performance, whether providing a seat would unduly interfere with other standing tasks, and whether the frequency of transition from sitting to standing would interfere with the work. The totality of the circumstances approach applies.
Many employees perform multiple tasks. Some duties may be compatible with sitting while others are not. If tasks qualify, the seat provided must be located within reasonable proximity of the work area. Even if job responsibilities do not qualify, chairs must be made available for times when work is not required to be performed.
Walmart’s resistance appears based on its position that cashiers need to be able to move around to look inside carts, stock shelves, and greet customers. Per the store, standing while operating the cash register promotes the best possible customer service.
Walmart has already permitted cashiers with certain disabilities to work while seated. Indeed, the company’s safety and compliance department tested and approved ergonomic reaches and ranges of motion relevant to the tasks assigned a seated cashier, and chose a specific seat to ensure acceptability to the disabled cashiers and the necessities of the job. The non-disabled cashiers now argue that this establishes that the work can be done while seated.
The dictates of Order 7 were reinforced in a case titled Kirby v. CVS Pharmacy, (2016). The state Supreme Court affirmed that employees must be provided seats if the work they are doing can reasonably be done in a seated position.
The trial is scheduled for fall, 2018.
The lawsuit is brought as a class action, meaning litigation in which there are many similarly-situated plaintiffs. For a case to be pursued as a class action, a court must certify the class, meaning the judge must be satisfied that sufficient common tasks are performed by the proposed class members. The class of Walmart cashiers was certified in 2012 and affirmed on appeal.
Few if any other states have a law similar to Order 7.
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