Employer: Give it to me straight, Doc, is it serious?
Defense Counsel: You'll need to sit down for this one.
Employer: Okay. Wait, there aren't any chairs here.
Defense Counsel: I know! Get it? No chairs? Now don't be like that....
I'm delaying the reporting just to build the suspense. You have been wondering whether violations of Wage Order No. 7, subdivision 14 are violations of Labor Code § 1198, and here I am writing my first play. But your wait is over. In Bright v. 99¢ ONLY STORES, the Court of Appeal (Second Appellate District, Division Five) held that (1) violations of Wage Order No. 7, subdivision 14 are violations of section 1198; and (2) civil penalties under section 2699, subdivision (f) are available despite the fact that Commission wage order No. 7-2001 has its own penalty provision.
This action arises from a claim for civil penalties under the Private Attorneys General Act of 2004 ("PAGA") for violation of the suitable seating order of the Commission. Commission Wage Order No. 7, subdivision 14, provides, in part: Wage Order No. 7, subdivision 14 provides: “(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. [¶] (B) When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.” Slip op., at 2, n. 2. This requirement is sometimes known as the suitable seating requirement. The trial court sustained the defendant's demurrer on the grounds that (1) failure to provide sufficient seating is not a condition “prohibited” by Wage Order No. 7, subdivision 14, and (2) even if it were, civil penalties are not recoverable under section 2699, subdivision (f), because Commission Wage Order No. 7-2001 contains its own civil penalty provision.
The Court of Appeal concluded that the issues raised in the appeal were matters of first impression. On an issue of first impression, the Court began with the statute at issue:
We begin by examining the statutory and administrative scheme, starting with section 1198, which provides: “The maximum hours of work and the standard conditions of labor fixed by the commission shall be the maximum hours of work and the standard conditions of labor for employees. The employment of any employee for longer hours than those fixed by the order or under conditions of labor prohibited by the order is unlawful.”
Slip op., at 5. The Court then held that, under the plain meaning of section 1198, suitable seating is a "standard condition of labor fixed by the commission." Slip op., at 6. The Court rejected defendant's argument that because the seating language was not expressed in prohibitory language, it was merely a suggestion.
Employer: What about chairs that give off electric shocks at random intervals so nobody wants to sit in them?
Defense Counsel: No. Wait. Yes, if that's what you want to do, but only after you augment your retainer. Significantly.
Turning to the second question, the Court of Appeal quickly concluded that, because the suitable seating requirement did not have its own penalty provision, it is governed by section 2699, subdivision (f) of PAGA. The Court noted that the penalty set forth in subdivision 20 is expressly described as a cumulative remedy, rendering it nonexclusive.
Employer: I had a nightmare. It was horrible.
Defense Counsel: Tell me about it.
Employer: It was dark. There was a sound. It was like nothing I have ever heard before. I think it was the sound of drool from a million plaintiff's attorneys splattering on the floor.
Defense Counsel: It was no dream!