In a well written opinion issued December 19, 2012, Judge William Alsup sides with KMart in a suitable seating case brought against retailer by an employee claiming the checkout stand needed to be reconfigured with a seat to sit down. The Court provided employers with the best explanation so far of employer obligations in these types of cases. In so doing, KMart blazed a trail for others in the retail and restaurant industry to use in defending against these types of cases.

Judge Alsup was able to clearly recognize the weakness of the classes’ trial presentation, where the class had failed to demonstrate how seats could be provided in a suitable manner that would provide safety to the employees and meet the employers’ legitimate business needs. In the most helpful portion of the decision for employers, Judge Alsup recognized the retail industry’s legitimate desire to have employees’ standing and ready to assist customers, particularly those customers in checkout lines. In so doing, the Court took into account the customer’s perspective when waiting in a checkout line and the delay caused by employees sitting down, standing up, and sitting down again. However, before everyone leaps up from their desks, the Court did leave the door open for seating in instances where the seats did not present a safety concern and where the customer flow was not busy such that sitting down and standing up would not delay service.

Judge Alsup is continuing his consideration of this case. In a second phase, the Court will consider the larger class issues, as well as consider a certain type of swing out seat for check out stations. However, where the Court’s focus was squarely on both safety and customer service, simply having a safer chair should not alter Judge Alsup’s opinion, lest he wants to be seen as inconsistent. The Court found that KMart had a legitimate concern about customer perspective when viewing employees sitting down while customers are standing in line. Based on this finding, the Court concluded that it is almost never slow enough that an employee at a checkout stand would have no one in line, so the same result would follow regardless of what type of technologically-safe seat the plaintiffs’ attorneys present.

The roadmap that KMart has provided employers is an important one. The focus for employers dealing with this issue must be on safety and a well-articulated customer service perspective. See copy of full opinion attached here.