A California federal judge on Aug. 23 granted preliminary approval of a $ 280,000 settlement to be paid by Kmart Corp. to end a class complaint by cashiers alleging that they were denied seats at the checkout stands (Colette Delbridge, et al. v. Kmart Corporation, No. 11-2575, N.D. Calif.; 2013 U.S. Dist. LEXIS 120377).
Lisa Garvey, who worked as a seasonal cashier in the Tulare Kmart store for about two months in 2010, filed a class action complaint in 2011 in the Alameda County, Calif., Superior Court against Kmart, alleging that it violated Section 14 of California Industrial Welfare Commission Wage Order 7-2001, which states in part that “employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”
Garvey brought the suit under California’s Private Attorney General Act of 2004 (PAGA), which permits an “aggrieved employee” to institute an action “on behalf of himself or herself and other current or former employees” to collect civil penalties for a violation of any provision of the California Labor Code. Kmart removed the case to the U.S. District Court for the Northern District of California.
Garvey moved to certify the following class under Federal Rule of Civil Procedure 23(b)(3): “All persons who, during the applicable [one-year] statute of limitations, were employed as a Cashier for defendants at their Kmart retail stores (including Big Kmart and Kmart Supercenter) in the State of California and were not provided with a seat while working the front-end cash registers.” Her request for a statewide class was rejected. Instead, a class limited to cashiers at the Tulare store was approved.
The case proceeded to a bench trial. At trial, class counsel failed to prove that the nature of the work at the Tulare store reasonably permitted the seating modification urged by counsel. Later, an opportunity was granted to add further representatives for other stores. Sabrina Cline, who worked at a Kmart in Petalma, Calif., and Collette Delbridge, who worked at a Kmart in Redlands, Calif., were allowed to intervene in the action as putative class plaintiffs. A subsequent order dismissed Cline from the action and certified a class of cashiers from the Redlands store.
On Aug. 9, the parties filed a joint motion for preliminary approval of a settlement agreement covering all claims of the Redlands and Tulare employees.
Judge William Alsup granted the motion in his Aug. 23 order.
Under the terms of the settlement, Kmart will pay $ 280,000 to settle the action. The Tulare class members will receive a $ 100 settlement share on average, while the Redlands class members will receive a $ 150 settlement share on average. No class members will receive a settlement share under $ 25 or over $ 200. The settlement amount provides for $ 150,600 for class counsel. If the final approval of the settlement includes approval of costs in excess of that amount, the excess will be paid only from funds available from uncashed checks for settlement shares. The settlement amount also provides for a $ 1,000 incentive for Garvey and Delbridge.
Charles A. Jones and Kelly McInerney of Jones Law Firm in Reno, Nev., James F. Clapp and Zachariah P. Dostart of Dostart, Clapp & Coveney in San Diego, Kevin J. McInerney of Reno and Matthew Righetti of Righetti Glugoski in San Francisco represent the cashiers.
E. Jeffrey Grube of Paul Hastings in Palo Alto, Calif., and Elizabeth J. MacGregor, Jeffrey P. Michalowski, Jeffrey D. Wohl, Malaina R. Freedman, Zachary P. Hutton and Brittany A. Sachs of Paul Hastings in San Francisco represent Kmart.