Ex-Toys 'R' Us Clerk Can Bring Seating Suit For 14K Workers

Los Angeles
January 11, 2013
 Matthew Heller

Law360, Los Angeles (January 11, 2013, 5:04 PM ET) -- A California judge ruled Wednesday that a former Toys 'R' Us stock clerk who alleges she was denied “suitable seating” at her workplace can pursue a lawsuit on behalf of more than 14,000 employees, finding triable issues that the case is manageable on a representative basis.

Los Angeles Superior Court Judge Mary Strobel rejected Toys 'R' Us' argument that Gina Richee could not bring a “nonclass representative action” under California's Private Attorney General Act because the company employs workers in 104 different positions and there are significant variations from store to store for the same position. Richee worked as a pricing and signage team member in the Cerritos store.

“Plaintiffs have submitted evidence to support the argument that [the] case should be manageable,” Strobel said in denying Toys 'R' Us' motion for summary judgment.

She singled out the deposition of a manager who testified that nonmanagerial positions are basically the same from store to store and Toys 'R' Us cross-trains all store employees to perform certain duties such as cashiering.

If positions and duties are the same across stores, Richee has argued, she will be able to show on a representative basis which duties permit the use of seats and which require standing.

“Defendant has not shown that Richee could not be an adequate representative for some classes of employees,” Judge Strobel concluded.

Richee, who worked for Toys 'R' Us from 1995 to 2010, and another former employee, Yvonne Taylor, filed a PAGA suit in March 2011, alleging the company violated Industrial Welfare Commission wage orders that require employers to provide “suitable seats when the nature of the work reasonably permits the use of seats” and provide an adequate number of seats in “reasonable proximity” to the work area when employees are taking a break and the nature of their work requires standing.

The PAGA allows claims to be filed as nonclass representative actions, a legal mechanism that avoids the sometimes onerous requirements of class actions.

Toys 'R' Us moved for summary judgment on the basis of manageability and the argument that Richee was provided with a seat when she performed the duties that comprised the nature of her work and she had plenty of places to sit when she was not working, including in the break room.

But Judge Strobel, in addition to finding manageability, said there were triable issues as to “whether Richee was provided with seats [when] the nature of her work permitted sitting” and whether Toys 'R' Us provided adequate seats in proximity to the work area.

Richee, she noted, had testified that seats available on the retail sales floor were for customer use and the break room was up a flight of stairs and set apart from the sales floor.

Judge Strobel did, however, dismiss Taylor from the case on procedural grounds, finding she had not exhausted her administrative remedies by filing a grievance with the Labor and Workforce Development Agency.

Richee is represented by David Spivak and Jim McElwain of the Spivak Law Firm and Shaun Setareh and Hayley Schwartzkopf of the Law Office of Shaun Setareh.

Toys 'R' Us is represented by Mark S. Askanas, Dylan B. Carp and Mia Farber of Jackson Lewis LLP.

The case is Richee v. Toys 'R' Us-Delaware Inc., case number BC457688, in the Superior Court of the State of California, County of Los Angeles.

--Editing by Andrew Park.

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