In early January 2018, the 80,000 member class of Walmart cashiers alleging that the big box store was in violation of state law due to the failure to provide them with seating on the job made the notable claim that when the company provided seats to cashiers with disabilities, they conceded that seating for cashiers was feasible. This claim that the company has already (through their actions towards cashiers with disabilities) acknowledged that the work of a Walmart cashier permits seating was made in California federal court in support of allegations in their suit.
The class argued that in light of last year’s California Supreme Court ruling that companies are required to provide seats if the work can be done sitting down, the big box store’s obvious acknowledgement that the work can be completed while sitting leaves them with no excuse for not allowing all their cashiers to sit.
When determining how best to accommodate cashiers with disabilities, both Walmart’s safety and compliance department and Walmart’s own Americans with Disabilities Act experts tested and later approved ergonomic reaches and ranges of motion relevant to the work of a seated cashier stationed in the ADA check-out lanes. Walmart chose the specific seat to be offered to disabled cashiers themselves in order to ensure that the situation would be acceptable for both the company’s findings regarding required work and situational necessities.
The action was originally launched by Lead Plaintiff and former cashier, Kathy Williamson, in the Superior Court for Alameda County in summer of 2009. It was moved to federal court at a later date. U.S. District Judge Edward J. Davila granted the motion to certify class in 2012, finding that there was a common nature of work amongst the California Walmart cashiers. He also concluded that a trier of common facts could pinpoint exactly what designated tasks could be performed while cashiers were seated.
The Defendant appealed the ruling to the Ninth Circuit. The appellate court affirmed the decision in June. This was just two months after the state Supreme Court defined the state’s seating rule in the Kilby v. CVS Pharmacy Inc. decision. In this decision, the court determined that employees must be provided with seats if the work they are completing can be done in a seated position even if they aren’t performing the same task all day long. The class of Walmart cashiers argued that the Kilby decision controlled the case and that Walmart has shown on numerous occasions that being seated would not prevent their cashiers from performing their duties (i.e. Walmart productivity study, and study on negative perception in 2007). The case is scheduled to go to trial in fall 2018.
If you have questions about class action lawsuits or if you feel unfairly treated in the workplace, please contact one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP to discuss potential violations.