In an amicus brief filed yesterday, the Retail Litigation Center (RLC) and the California Retailers Association urged the Supreme Court of California to recognize the importance of mobile and engaged sales associates to today's retail industry where associates no longer simply stand behind a cash register waiting for customers but are continually engaged in a variety of important duties throughout the store. Indeed, as the brief points out, the trend in retail is toward reducing fixed checkstands and increasing mobile checkout throughout the store.
In the case in question, Kilby v. CVS Pharmacy, Inc., the U.S. Court of Appeals for the Ninth Circuit asked the California Supreme Court to interpret the "nature of the work" standard in the California Wage Order as it relates to the employer's responsibility to provide seating for employees in the retail context. Given the broad range of duties today's sales associates fulfill and the importance of customer service, introducing a stool into the limited checkstand area does not make sense and could present hazards.
"Today's retail environment places a premium on customer service and requires sales associates to engage in a full range of duties, frequently alternating between multiple tasks," said RLC President Deborah White. "The Supreme Court of the State of California should recognize the importance of evaluating the totality of the circumstances in determining the 'nature of the work,' rather than asking employers to tally up the amount of time spent on individual tasks in a vacuum."
The RLC brief highlights the unique structure, needs and business practices of the retail industry, including the variety of duties and responsibilities of the sales associate, and arguing that mandating seats at every checkstand will pose a hazard that limits employees' ability to provide good customer service and adequately perform their responsibilities throughout the store.
From the brief filed with the Supreme Court of the State of California:
"Good customer service is the lifeblood of a retail enterprise. A sales associate who is standing contributes to the customer's perception of good customer service."
"Indeed, the trend in modern retailing is to move away from fixed checkout stations in order to meet the customer where he or she is -- anywhere in the store -- to provide a more service-oriented experience."
"The Petitioners' view that "cashiers" can remain idle and sitting whenever there is no customer ready to check out is pure fiction. The "nature of the work" of today's retail sales associate – both in terms of the breadth of duties required and the movement required even at a checkstand – necessitates standing, and does not permit (reasonably or otherwise) the use of a seat."
"Taking a 'holistic rather than a piecemeal approach to a determination of the 'nature of the work', and stating that '[r]ead as a whole, the phrase 'the nature of the work' suggests the entirety of the duties and responsibilities of a particular job. The job – 'nature of the work' – either 'permits the use of seats' or 'requires standing', but it cannot do both.'"
The brief, drafted by Fox Rothschild LLP attorneys David F. Faustman and Cristina K. Armstrong, can be read in full here.
The Retail Litigation Center is a public policy organization that identifies and engages in legal proceedings which affect the retail industry. The RLC, whose members include some of the country's largest retailers, was formed to provide courts with retail industry perspectives on significant legal issues, and highlight the potential industry-wide consequences of legal principles that may be determined in pending cases.