Garvey v. Sears Holding Management Corporation

Filing 210

ORDER REQUESTING AMICUS BRIEFS FROM CALIFORNIA AGENCIES. Signed by Judge Alsup on November 16, 2012. (whalc1S, COURT STAFF) (Filed on 11/16/2012)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 11 For the Northern District of California United States District Court 10 12 13 No. C 11-02575 WHA LISA GARVEY, individually and on behalf of others similarly situated, Plaintiff, 14 15 ORDER REQUESTING AMICUS BRIEFS FROM CALIFORNIA AGENCIES v. KMART CORPORATION, Defendant. 16 / 17 18 In connection with a bench trial now underway, the California Labor Commissioner and 19 the Secretary of the California Labor & Workforce Development Agency are invited to file 20 amicus briefs explaining their views of the meaning of IWC Wage Order 7-2001 Section 14, 21 which reads: 22 23 24 25 26 27 28 Seats (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. 1 Of particular interest to the Court are the following questions in the general context of a cashier 2 (checkout service employee) working at a discount retail-store checkout counter: 3 (1) Does the word “seats” include lean stools, benches, stools, lumbar bars, or furniture without backs? 4 5 6 (2) If the physical nature of the work requires standing for some tasks and permits (but does not require) sitting for other tasks, and both types of tasks are intermixed, such that a degree of repetitive rising from and returning to a seat would be involved, does “the nature of the work reasonably permit the use of seats”? 7 8 9 (3) If the physical nature of the work could reasonably be done while seated but the employer has a policy of requiring cashiers to remain standing so as to show respect to customers and to leave a favorable impression to the public, then does the “nature of the work” reasonably permit seating? 11 For the Northern District of California United States District Court 10 (4) To what extent should judges and administrators accord deference to business judgments of employers that the nature of the work does or does not reasonably permit the use of seats? 12 13 14 (5) When the nature of the work reasonably could be done while seated in a modified stall, but the actual, existing stall configuration cannot accommodate a seat, does the wage order require an employer to reconfigure to a different configuration, including as needed a larger footprint for the stall? 15 If amici believe they will be unable to submit a brief within 21 calendar days, please advise the 16 Court when the brief would be submitted and, within reason, the Court will wait, keeping in 17 mind that the sooner the better, given the need of the judge to remember the details of the 18 evidence. A prompt answer to this timing question will be appreciated. The Court does not 19 anticipate any need for amici to review the trial evidence or to indicate any ruling on the merits 20 of the pending trial but rather the Court believes the questions above can be answered by amici 21 as matters of law explaining the scope of their wage order. Any submissions by the parties to 22 amici on these questions would have to be submitted to amici (and the Court) within seven 23 calendar days from the date hereof. 24 The Clerk shall immediately serve a copy of this order on the respondents invitee amici. 25 26 IT IS SO ORDERED. 27 Dated: November 16, 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 28 2

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