Filed 7/19/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MONICA MEDA, B311398
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC683600
v.
AUTOZONE, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel S. Murphy, Judge. Reversed.
Kingsley & Kingsley, Eric. B. Kingsley, Ari J. Stiller, and
Jessica L. Adlouni for Plaintiff and Appellant.
Arena Hoffman, Ronald D. Arena, and Michael Hoffman for
Defendants and Respondents.
_______________________________________
INTRODUCTION
In California, an employee is entitled to use a seat while
working if the nature of the work reasonably permits the use of a
seat. An employer is required, in that circumstance, to provide
the employee with a suitable seat.
Plaintiff and appellant Monica Meda (plaintiff) worked as a
sales associate for about six months at an AutoZone auto parts
store (store) operated by defendant and respondent AutoZoners, a
Limited Liability Company (AutoZoners). After she resigned from
her position, plaintiff filed the present suit asserting one claim
under the Labor Code Private Attorneys General Act of 2004
(Lab. Code, § 2699 et seq.) (PAGA). She asserts AutoZoners failed
to provide suitable seating to employees at the cashier and parts
counter workstations, as to which some or all of the work
required could be performed while sitting.
AutoZoners moved for summary judgment, arguing
plaintiff lacked standing to bring a representative action under
PAGA because she was not aggrieved by AutoZoners’s seating
policy. Specifically, AutoZoners contends it satisfied the seating
requirement by making two chairs available to its associates. The
chairs were not placed at the cashier or parts counter
workstations but were in, or just outside, the manager’s office. In
opposition to the summary judgment motion, plaintiff contended
AutoZoners did not “provide” seating as required because no one
told her chairs were available for use at the front counter
workstations, she never saw anyone else use a chair at those
workstations, and she was only given the option to use a chair as
an accommodation after an on-the-job injury. The trial court
agreed with AutoZoners, granted the motion, and entered
judgment accordingly. Plaintiff appeals.
2
No published California authority has considered what
steps should be taken by an employer to “provide” suitable
seating within the meaning of the wage order seating
requirement. We conclude that where an employer has not
expressly advised its employees that they may use a seat during
their work and has not provided a seat at a workstation, the
inquiry as to whether an employer has “provided” suitable
seating may be fact-intensive and may involve a multitude of job-
and workplace-specific factors. Accordingly, resolution of the
issue at the summary judgment stage may be inappropriate, as it
was here. Because the undisputed facts create a triable issue of
material fact as to whether AutoZoners “provided” suitable
seating to its customer service employees at the front of the store
by placing seats at other workstations in a separate area of the
store, we conclude the court erred in granting the motion for
summary judgment. Accordingly, we reverse.
FACTS AND PROCEDURAL BACKGROUND
1. Background
Plaintiff worked part-time as a sales associate at the store
from November 8, 2016, until she resigned on April 18, 2017. As a
sales associate, plaintiff assisted customers at the parts counter
by answering questions and locating parts. She also operated the
cash register, cleaned the store, moved merchandise around the
store, and stocked shelves.
Plaintiff estimated that in the normal course of her work,
she spent approximately 40 percent of her time at the cashier
station and stated that she could do all cashier tasks while
seated. In addition, she estimated that she spent another 40
percent of her time at the parts counter and that roughly half of
3
the work required at that workstation could be performed while
seated.
Both the parts counter and the cashier workstations
(together, the front counter workstations) were located at
elevated counters. According to plaintiff, a desk-height chair
would be too low to use at the elevated counters. Instead, a raised
chair or stool was needed at those workstations. Per company
policy, the store had two raised chairs1 on-site and they were
generally located and used at two raised workstations in or near
the manager’s station area of the store. That area was open (i.e.,
did not have a door) but was separate and not visible from the
cashier and parts counter workstations. Plaintiff observed that
the manager often used a raised chair at one of the workstations
near the manager’s office.
Plaintiff used one of the raised chairs at the cashier
workstation for two days as a disability accommodation after she
injured her foot, but she believed those chairs were only available
as an accommodation. And according to AutoZoners’s corporate
representative, a store manager could not unilaterally grant a
request for an accommodation for sit-down work but would
instead need to confer with a human resources manager.
No one at the store told plaintiff either that she was
allowed to or was prohibited from using a raised chair at the
front counter workstations and she never asked for permission to
1 The parties repeatedly use the word “stool” to refer to the seating
available at the store for use at raised workstations. The photographs
included with the deposition excerpts, however, show that the seating
at issue consisted of two chairs with four-rung backs and legs long
enough to seat an employee at a raised workstation. We refer to these
seats as “raised chairs.”
4
do so. Plaintiff never saw other employees use a seat at the
cashier or parts counter workstations. She did see another
employee, who was pregnant at the time, use a small stool to sit
on while she stocked shelves.
AutoZoners’s stated policy was to make a stool available for
any employee that needed or desired to use one. In May 2016,
AutoZoners sent a “management action plan” to store managers
directing them to ensure that their store had two stools available
as needed and advising them that the stools could be placed by
the manager’s office, at the commercial desk, or by the end of the
cashier workstation. AutoZoners did not offer training regarding
its seating policy and the policy was not included in the employee
handbook.
2. Complaint
On September 14, 2017, several months after quitting her
job at the store, plaintiff provided the statutorily required notice
to the Labor and Workforce Development Agency of alleged Labor
Code violations by AutoZoners. (Lab. Code, § 2699.3.) The agency
did not respond to her notice within the time provided by statute.
Plaintiff filed the operative complaint on November 16,
2017, asserting one cause of action under PAGA on behalf of
herself and other similarly situated sales associates presently or
formerly employed in California by AutoZoners.2 Plaintiff alleges
AutoZoners failed to provide suitable seating as required under
2The original complaint named three defendants: AutoZone, Inc.,
AutoZoners, and AutoAnything, Inc. Plaintiff subsequently dismissed
AutoZone, Inc. and AutoAnything, Inc. from the case, leaving
AutoZoners as the sole defendant.
5
Industrial Welfare Commission wage order No. 7-2001,3 which
states in paragraph 14(A), “All working employees shall be
provided with suitable seats when the nature of the work
reasonably permits the use of seats.”4 (Cal. Code Regs., tit. 8,
§ 11070.) Specifically, plaintiff claims AutoZoners should have
but did not provide suitable seating at the cashier and parts
counter workstations. By her action, plaintiff seeks to recover
penalties, interest, costs of suit, and attorney’s fees.
3. Summary Judgment Proceedings
AutoZoners moved for summary judgment on the ground
that plaintiff lacks standing to bring a representative action
under PAGA because she has not experienced a violation of the
wage order seating requirement, i.e., she is not “aggrieved” as is
required for standing purposes. Specifically, AutoZoners asserted
it had provided suitable seating because there were two raised
chairs in the store and plaintiff had access to them at all times
during her employment. The raised chairs were located in the
manager’s office area which was open and accessible to
employees. Moreover, plaintiff had used one of the raised chairs
3“ ‘ “[W]age and hour claims are today governed by two complementary
and occasionally overlapping sources of authority: the provisions of the
Labor Code, enacted by the Legislature, and a series of 18 wage orders,
adopted by the [Industrial Welfare Commission (IWC)].” [Citation.]
The IWC, a state agency, was empowered to issue wage orders, which
are legislative regulations specifying minimum requirements with
respect to wages, hours, and working conditions.’ ” (Kilby v. CVS
Pharmacy, Inc. (2016) 63 Cal.4th 1, 10–11 (Kilby).)
4 We will refer to this provision as the wage order seating requirement.
6
at the cashier workstation after she suffered an on-the-job injury,
and she therefore knew seating was available.
Plaintiff opposed the motion, arguing she was aggrieved
because AutoZoners did not provide suitable seating for sales
associates except as a disability accommodation. Further,
according to plaintiff, AutoZoners had no formal policy regarding
employee seating, did not inform sales associates that they could
use a seat at the cashier and parts counter workstations, and did
not have any readily available seats at or near those
workstations. And although the store did have two raised chairs
that could be used at raised workstations, one was located inside
the manager’s office at a raised workstation often used by the
manager and the other was located just outside the manager’s
office at another raised workstation. In any event, plaintiff
asserted, AutoZoners also violated the wage order seating
requirement by providing only two raised chairs for all the
employees at the store. Depending on customer volume, the store
was typically staffed by five to nine employees. According to
plaintiff, AutoZoners was required to provide at least five chairs
so that every employee working at the cashier and parts counter
workstations could sit at the same time.
The court granted AutoZoners’s motion for summary
judgment. The court focused on the meaning of “provide” as used
in the wage order seating requirement and found that “provide”
means “make available.” Using that definition, the court noted it
was undisputed that two raised chairs were located in the
manager’s area of the store and plaintiff had access to that area.
The court concluded plaintiff would be unable to establish that
AutoZoners failed to provide her with suitable seating because
“(1) AutoZone[rs] had a company policy of making stools available
7
to employees like [plaintiff], (2) plaintiff knew that two stools
were located in the store, (3) [plaintiff] never asked AutoZoners
whether she could use the stools, (4) nobody ever told [plaintiff]
that she could not use the stools, (5) [plaintiff] was allowed to use
a stool the only time that she ever expressed a desire to do so,
and (6) [plaintiff] had access to the [manager’s] office where the
chairs were located and there was no impediment to her using
these chairs.”
4. Judgment and Appeal
The court signed and entered a judgment in favor of
AutoZoners on February 4, 2021. Plaintiff timely appeals.
DISCUSSION
Plaintiff contends the court erred in granting AutoZoners’s
motion for summary judgment because there are triable issues of
material fact as to whether AutoZoners provided her with
suitable seating. We agree.
1. Standard of Review
The standard of review is well established. “The purpose of
the law of summary judgment is to provide courts with a
mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party
“bears the burden of persuasion that there is no triable issue of
material fact and that he is entitled to judgment as a matter of
law.” (Id. at p. 850; Code Civ. Proc., § 437c, subd. (c).) The
pleadings determine the issues to be addressed by a summary
judgment motion. (Metromedia, Inc. v. City of San Diego (1980)
8
26 Cal.3d 848, 885, reversed on other grounds by Metromedia,
Inc. v. City of San Diego (1981) 453 U.S. 490; Nieto v. Blue Shield
of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60,
74.)
On appeal from a summary judgment, we review the record
de novo and independently determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.) We resolve any evidentiary doubts or ambiguities in
favor of the party opposing summary judgment. (Saelzler, at
p. 768.) “In performing an independent review of the granting of
summary judgment, we conduct the same procedure employed by
the trial court. We examine (1) the pleadings to determine the
elements of the claim, (2) the motion to determine if it establishes
facts justifying judgment in the moving party’s favor, and (3) the
opposition—assuming movant has met its initial burden—to
‘decide whether the opposing party has demonstrated the
existence of a triable, material fact issue.’ ” (Oakland Raiders v.
National Football League (2005) 131 Cal.App.4th 621, 630.) “We
need not defer to the trial court and are not bound by the reasons
in its summary judgment ruling; we review the ruling of the trial
court, not its rationale.” (Ibid.)
The appellant has the burden to show error, even if the
appellant did not bear the burden in the trial court, and “ ‘to
point out the triable issues the appellant claims are present by
citation to the record and any supporting authority.’ ” (Claudio v.
Regents of the University of California (2005) 134 Cal.App.4th
224, 230.) Further, “an appellant must present argument and
authorities on each point to which error is asserted or else the
issue is waived.” (Kurinij v. Hanna & Morton (1997) 55
9
Cal.App.4th 853, 867.) Matters not properly raised or that lack
adequate legal discussion will be deemed forfeited. (Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655–656.)
2. The court erred in granting AutoZoners’s motion for
summary judgment.
2.1. Plaintiff’s Complaint
As noted, we first consider the allegations of plaintiff’s
complaint to determine the scope of the issues.
Plaintiff alleges AutoZoners failed to provide suitable
seating as required under wage order No. 7-2001, which states in
paragraph 14(A), “All working employees shall be provided with
suitable seats when the nature of the work reasonably permits
the use of seats.” As the party with the ultimate burden at trial,
therefore, a plaintiff would be required to establish that the
nature of an employee’s work reasonably permits the use of a seat
and that the employer failed to provide a suitable seat. And for
purposes of standing in a representative action, a plaintiff would
need to establish that she performed tasks which reasonably
permitted the use of a seat and that her employer did not provide
her with a suitable seat.
Plaintiff alleges that AutoZoners “had a consistent policy of
failing to provide suitable seats to Plaintiff and other aggrieved
employees at locations within their stores where the nature of the
work reasonably permits the use of a suitable seat, including at
the cash register and the parts counter.” Further, she alleges that
“[w]hen Plaintiff and other Aggrieved Employees worked at the
cash register or the parts counter, the nature of the work allowed
for a suitable seat to be provided. However, [AutoZoners] did not
make a suitable seat available to Plaintiff and other Aggrieved
10
Employees at these locations within its stores. Instead, Plaintiff
and other Aggrieved Employees were forced to stand while
working at these locations.” These allegations sufficiently state a
cause of action for violation of the wage order seating
requirement.
2.2. AutoZoners’s Evidence
As the moving party, AutoZoners had the initial burden to
show that plaintiff’s claim has no merit—that is, that one or more
elements of the cause of action cannot be established, or that
there is a complete defense to that cause of action. (Code Civ.
Proc., § 437c, subd. (o); see Jones v. Wachovia Bank (2014) 230
Cal.App.4th 935, 945.) “If a defendant’s moving papers make a
prima facie showing that justifies a judgment in its favor, the
burden of production shifts to the plaintiff to make a prima facie
showing of the existence of a triable issue of material fact.”
(Jones, at p. 945; Professional Collection Consultants v. Lauron
(2017) 8 Cal.App.5th 958, 965.)
In its motion for summary judgment, AutoZoners correctly
noted that a plaintiff asserting a representative claim under
PAGA must be aggrieved. “The plain language of section 2699(c)
has only two requirements for PAGA standing. The plaintiff must
be an aggrieved employee, that is, someone ‘who was employed by
the alleged violator’ and ‘against whom one or more of the alleged
violations was committed.’ ([Lab. Code,] § 2699(c).)” (Kim v. Reins
International California, Inc. (2020) 9 Cal.5th 73, 83–84.) It is
undisputed that plaintiff worked for AutoZoners. AutoZoners
contends, however, that it did not violate the wage order seating
requirement because it provided suitable seating to plaintiff
throughout the course of her employment.
11
Specifically, AutoZone notes that the store had two raised
chairs on-site and that the chairs were typically located in the
manager’s station area. Plaintiff had access to that area as it was
not enclosed or behind a door, and she was aware that the store
had two raised chairs from the first day of her employment.
Plaintiff could not recall if she ever asked to use a raised chair at
the parts counter or cashier workstations. But she agreed that no
one ever told her that she could not use the raised chairs.
Plaintiff did use one of the raised chairs at the cashier
workstation for a short time. After plaintiff injured her foot, she
asked the store manager to allow her to use a raised chair as an
accommodation. He granted that request. Although plaintiff was
never told she could no longer use the raised chair, she stopped
using it after two days. Plaintiff’s only complaint about the raised
chairs is that she believed she was not allowed to use them at the
front counter workstations except as required for a disability
accommodation.
We agree with the court that AutoZoners produced
sufficient evidence to meet the initial burden of production on the
standing issue, i.e., that it provided suitable seating to plaintiff.
2.3. Plaintiff’s Evidence
In opposition to AutoZoners’s motion, plaintiff provided her
own declaration as well as a declaration by another employee at
the store. She also submitted excerpts of her own deposition and
the deposition of AutoZoners’s person most knowledgeable,
C. Hopkins.
Much of plaintiff’s evidence mirrored AutoZoners’s
evidence. Plaintiff agreed, for example, that the store had two
raised chairs on-site and they were generally located and used at
two raised workstations in or near the manager’s station area of
12
the store. That area was open to the rest of the store but was
separated and not visible from the cashier and parts counter
workstations. Plaintiff also observed, however, that the manager
often used a raised chair at the workstations near the manager’s
office.
Plaintiff also conceded that she used one of the raised
chairs at the cashier workstation for two days after she injured
her foot. She acknowledged that no one at the store told her
either that she was allowed to or was prohibited from using a
raised chair at the front counter workstations and that she never
asked for permission to do so. But plaintiff said she was unaware
that she could use a raised chair at the front counter stations.
She thought the raised chairs were only provided as an
accommodation because she never saw other employees using
chairs at the parts counter or cashier workstations. And the only
other employee she ever saw using any sort of seat during her
work was pregnant and used a small stool to sit while she stocked
shelves.
According to Hopkins, a store manager could not
unilaterally grant a request to use a seat as an accommodation
but would need to confer with a human resources manager
regarding any accommodation for an on-the-job injury.
Nevertheless, AutoZoners’s stated policy was to make a stool
available for any employee that needed or desired to use one. The
policy was included in a memorandum and then a “management
action plan,” i.e., a company-wide communication to store
managers, in May 2016. The policy directed store managers to
ensure that each store had two stools available as needed and
advised that the stools could be placed by the manager’s office, at
the commercial desk, or by the end of the cashier workstation. In
13
the event that two people wanted to use the same chair, Hopkins
said “they would have to work that out between the two of them
as adults.” AutoZoners did not offer training regarding its seating
policy, and the policy was not included in the employee handbook.
2.4. Analysis
As noted, the trial court found plaintiff would be unable to
establish that she was aggrieved for standing purposes because
AutoZoners demonstrated, as a matter of law, that it “provided”
suitable seating to plaintiff.5 We conclude that triable issues of
material fact exist on this issue.
Where, as here, “ ‘a wage order’s validity and application
are conceded and the question is only one of interpretation, the
usual rules of statutory interpretation apply.’ [Citations.]” (Kilby,
supra, 63 Cal.4th at p. 11.) Accordingly, and “[a]s we would in
interpreting a statute, we begin by examining the words of the
wage order as the best indicator of the IWC’s intent. (See Brinker
[Restaurant Corp. v. Superior Court (2012)] 53 Cal.4th [1004,]
1027 [(Brinker)]; Martinez v. Combs (2010) 49 Cal.4th 35, 63.)”
(Kilby, supra, 63 Cal.4th at p. 16.) “ ‘ “ ‘ “We first examine the
statutory language, giving it a plain and commonsense meaning.
We do not examine that language in isolation, but in the context
of the statutory framework as a whole in order to determine its
5 Because AutoZoners’s motion for summary judgment only raised the
issue of plaintiff’s standing to bring a PAGA claim, we focus solely on
whether a triable issue exists concerning plaintiff’s access to suitable
seating. We need not, and do not, consider plaintiff’s additional
assertion that AutoZoners violated the wage order seating requirement
by failing to supply enough chairs to seat every worker at the same
time.
14
scope and purpose and to harmonize the various parts of the
enactment. If the language is clear, courts must generally follow
its plain meaning unless a literal interpretation would result in
absurd consequences the Legislature did not intend. If the
statutory language permits more than one reasonable
interpretation, courts may consider other aids, such as the
statute’s purpose, legislative history, and public policy.”
[Citation.] “Furthermore, we consider portions of a statute in the
context of the entire statute and the statutory scheme of which it
is a part, giving significance to every word, phrase, sentence, and
part of an act in pursuance of the legislative purpose.” ’ ” ’ ”
(Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 662.) As to
wage orders specifically, “ ‘[i]n light of the remedial nature of the
legislative enactments authorizing the regulation of wages, hours
and working conditions for the protection and benefit of
employees, the statutory provisions are to be liberally construed
with an eye to promoting such protection.’ [Citations.]” (Brinker,
supra, 53 Cal.4th at pp. 1026–1027.)
The wage order at issue states, “All working employees
shall be provided with suitable seats when the nature of the work
reasonably permits the use of seats.” (Italics added.) The term
“provide” is not defined in the wage order or the Labor Code and
no published California decision has considered the precise
question before us. As the trial court observed, however, “provide”
generally means “make available to.” (See Merriam-Webster’s
Collegiate Dict. (11th ed. 2008) p. 1001 [“to supply or make
available (something wanted or needed)”].) “Available,” in turn,
typically means “present or ready for immediate use.” (Id., at
p. 84.)
15
An employer may provide a suitable seat for an employee
by placing a seat at the employee’s workstation, as is commonly
done in an office setting. Plaintiff asserts, however, that “[t]he
commonsense reading of the [wage order seating requirement] is
that employers must provide seats to employees in the locations
they are performing work that permits seating. AutoZone[rs] did
not satisfy that requirement by keeping two [raised chairs] in a
separate part of the store, placing them in use in those other
locations, and never informing employees that those stools were
available for immediate use at the cash register or parts counter.”
(Italics added.)
Because we are focused on the issue of standing to bring a
PAGA claim, we need not consider whether an employer is
required to place a seat at every workstation involving work that
could be performed while seated.6 Indeed, that may not always be
feasible given the particular characteristics of a workspace. But
where, as here, the employer does not place a seat at an
employee’s workstation, the inquiry as to whether a seat has
been “provided” to the employee may be fact-intensive.
Our high court analyzed certain aspects of the wage order
seating requirement in Kilby, supra. There, the court addressed
three questions certified by the Ninth Circuit Court of Appeals:
(1) Does the “nature of the work” refer to individual tasks or the
entire range of an employee’s duties? (2) What factors should
courts consider to determine whether the nature of the work
“reasonably permits” the use of a seat? (3) If an employer has not
provided any seat, must an employee prove a suitable seat is
6Nothing in this opinion should be construed as adopting, or rejecting,
such a rule.
16
available in order to show that the employer has violated the
wage order seating requirement? (Kilby, supra, 63 Cal.4th at
p. 8.) Although the court did not directly consider what an
employer must do to “provide” suitable seating, the nature of the
court’s inquiry is of some assistance.
The court explained that the IWC originated as an
investigative entity formed by the Legislature to address
inadequate wages and poor working conditions. (Kilby, supra, 63
Cal.4th at p. 10.) The court also reviewed the history of the wage
order seating requirement at length, discussing its evolution.
Initially, the seating requirement was intended to allow
employees to sit while performing tasks using tools at work
tables and while using machinery. The IWC later expanded the
suitable seating requirement to apply whenever “the nature of
the work permits.” The IWC then amended the seating
requirement to read, as it does now, that an employer must
provide seating “when the nature of the work reasonably permits
the use of seats.” (Id. at pp. 11–15.) The bulk of the court’s
subsequent discussion focused on how to determine whether the
“nature of the work” requires that seating be provided and in
doing so, the court considered positions previously taken by the
Division of Labor Standards Enforcement (DLSE). The court
emphasized the IWC’s position, which was reinforced by DLSE,
that “ ‘humane considerations for the welfare of employees
requires that they be allowed to sit at their work or between
operations when it is feasible for them to do so.’ ” (Id. at pp. 14,
16–17.) Further, the court noted that DLSE’s enforcement efforts
necessarily focused on a range of factors: “The DLSE ‘would
consider all available facts and conditions, including but not
limited to the physical layout of the workplace and the employee’s
17
job functions, to determine compliance with Section 14
requirements.’ ” (Id. at p. 15.)
The court adopted the DLSE’s approach to some degree.
Specifically, the court held that “[w]hen evaluating whether the
‘nature of the work reasonably permits the use of seats,’ courts
must examine subsets of an employee’s total tasks and duties by
location, such as those performed at a cash register or a teller
window, and consider whether it is feasible for an employee to
perform each set of location-specific tasks while seated. Courts
should look to the actual tasks performed, or reasonably expected
to be performed, not to abstract characterizations, job titles, or
descriptions that may or may not reflect the actual work
performed. Tasks performed with more frequency or for a longer
duration would be more germane to the seating inquiry than
tasks performed briefly or infrequently.” (Kilby, supra, 63 Cal.4th
at p. 18.)
Taking a similarly fact-specific approach regarding the
question presented here—whether an employer has “provided”
suitable seating—makes sense. As the court recognized in Kilby,
every workplace is different, and a variety of factors may impact
how an employer could “provide” suitable seating at a particular
workstation. Courts might consider, for example, the nature of an
employee’s job responsibilities, how frequently an employee
changes tasks, the physical layout of the workspace, the number
of employees sharing a workstation, and the extent to which the
location of a seat at or near a workstation may obstruct
employees’ tasks or cause congestion (and possibly create safety
risks) in a specific work area.
We also take guidance from a case in which the Supreme
Court discussed the meaning of “provide” in a related context. In
18
Brinker, supra, the court “consider[ed] what it means for an
employer to provide a nonexempt employee a meal period.”
(Brinker, supra, 53 Cal.4th at p. 1034.) The employee argued the
employer was obligated to ensure that work stopped for the 30-
minute rest period. The employer, by contrast, asserted that it
was only required to “make available” a meal period during
which no work would be required and that it did not need to
ensure the employee performed no work during that time. (Ibid.)
Ultimately, the court concluded that an employer
“provides” a meal break “if it relieves its employees of all duty,
relinquishes control over their activities and permits them a
reasonable opportunity to take an uninterrupted 30-minute
break, and does not impede or discourage them from doing so.
What will suffice may vary from industry to industry, and we
cannot in the context of this class certification proceeding
delineate the full range of approaches that in each instance might
be sufficient to satisfy the law.” (Brinker, supra, 53 Cal.4th at
p. 1040.) The court elaborated: “Proof an employer had knowledge
of employees working through meal periods will not alone subject
the employer to liability for premium pay; employees cannot
manipulate the flexibility granted them by employers to use their
breaks as they see fit to generate such liability. On the other
hand, an employer may not undermine a formal policy of
providing meal breaks by pressuring employees to perform their
duties in ways that omit breaks.” (Ibid.)
Although providing a meal break is a qualitatively different
undertaking than providing a seat, the court’s analysis in Brinker
provides useful guidance. The court acknowledged, as it did in
Kilby, that the inquiry as to whether an employer provides a
meal break is fact-intensive and the relevant factors may vary
19
depending on the specific circumstances. In addition, the court
observed that in order to “provide” a meal break, an employer
must not only permit an employee to take a meal break but must
also refrain from any practice that might discourage or impede
the employee from taking advantage of the meal break. (Brinker,
supra, 53 Cal.4th at p. 1040.)
These aspects of the court’s analyses in Brinker and Kilby
lead us to conclude that a triable issue of material fact exists as
to whether AutoZoners “provided” plaintiff with a suitable seat
within the meaning of the wage order seating requirement.
First, we note that although two raised chairs were present
in the store, they were not placed at the cashier workstation or
the parts counter workstation nor were they in the immediate
vicinity of those workstations. That is, an employee would need to
leave the front counter workstations, proceed down a short
hallway and around a corner into the manager’s work area—and
out of customer view—to locate, and then move, one of the raised
chairs to the front counter. While we do not suggest that an
employer must always place a chair at or within a specific
distance of a workstation, the proximity of a seat to an employee’s
workstation is a relevant factor to be considered when assessing
whether a seat has been provided for the employee’s use. This is
particularly true where, as here, the employer has not advised its
employees that seats are available for their use by either directly
informing the employees or including the seating policy in its
employee handbook.7
7 We do not suggest that this circumstance is determinative. On these
facts, however, it is relevant.
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Second, the raised chairs were placed at other raised
workstations in the store and plaintiff often observed the store
manager using the raised chairs. Viewed in the light most
favorable to plaintiff—and in favor of the protective purpose of
the IWC’s work orders—this evidence could support a reasonable
inference that the raised chairs were not provided for use at the
front counter workstations. Specifically, a reasonable trier of fact
could conclude AutoZoners intended that the raised chairs be
used only at the raised workstations in the area of the manager’s
office. Alternatively, one could conclude that AutoZoners
discouraged its employees from using raised chairs at the front
counter workstations by placing the chairs at raised workstations
in other areas of the store. The fact that the chairs were placed in
or just outside the manager’s office could also support such an
inference, as employees might feel uncomfortable taking a chair
from the manager’s area for their own use in another location.
Finally, the fact that no other employees ever used a raised
chair at the parts counter or cashier workstations8 could support
a reasonable inference that AutoZoners either prohibited or
discouraged the use of seats at the front counter workstations,
notwithstanding its stated (but uncommunicated) policy of
permitting the use of seats.
AutoZoners asserts, without substantive analysis, that
plaintiff’s belief that she could not use the raised chairs at the
front counter workstations is irrelevant. According to
AutoZoners, “[t]he statute only requires that the company
8AutoZoners asserts that plaintiff “saw someone else” using a seat at
the front counter workstations. Not so. Plaintiff saw a pregnant
employee using a low stool to sit on while stocking shelves.
21
provide suitable seating and give employees reasonable access to
it.” And here, it claims, plaintiff did have access to the raised
chairs because they were not in a locked area and no one ever
told plaintiff that she could not use those chairs. We agree with
AutoZoners insofar as it suggests that employee access to chairs
and an employer’s instructions to employees concerning their use
of chairs are relevant considerations. But on the facts before us,
we cannot say that those factors are conclusive. Other factors we
have discussed are also relevant and, at a minimum, create a
triable issue of material fact as to whether AutoZoners provided
suitable seating to plaintiff.
AutoZoners also contends that plaintiff’s stated belief that
she could not use the raised chairs at the front counter
workstations is undermined by the fact that she used a raised
chair at the cashier workstation after injuring her foot. The
opposite is true, however. The only time anyone used a raised
chair when plaintiff was working was when she was allowed to
use one after injuring her foot. That fact is consistent with her
understanding that an employee could only use a chair as an
accommodation. Moreover, AutoZoners’s corporate representative
indicated that a store manager could not provide a seat as an
accommodation without conferring with a corporate human
resources employee. That fact could also support a reasonable
inference that seats were not generally available to the store’s
employees.
AutoZoners notes that plaintiff never asked if she could use
the raised chairs and that no one ever prohibited her from using
them. Apparently, AutoZoners believes that an employee must
inquire whether suitable seating is available before a violation of
the wage order seating requirement can be established.
22
AutoZoners cites no legal authority, and presents no cogent
analysis, in support of this position. Accordingly, the issue is
forfeited. (Keyes v. Bowen, supra, 189 Cal.App.4th at pp. 655–656
[noting matters not properly raised or that lack adequate legal
discussion will be deemed forfeited].)
DISPOSITION
The judgment is reversed. Plaintiff Monica Meda shall
recover her costs on appeal.
CERTIFIED FOR PUBLICATION
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
ADAMS, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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