236 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com still expected to move about the store fulfilling various other tasks: “Sitting in or near the checkstands when there are no customers in line instead of cleaning, restocking, assisting other departments, or fishing [for customers], would interfere with the performance of the cashiers’ other duties.”326 LaFace stated that employees cannot create a “lull in operations” simply by choosing not to perform their job duties.327 In 2023 Seyfarth obtained a defense verdict following an eleven-day bench trial on a suitable seating claim.328 The Court concluded that the totality of the circumstances demonstrated that employees had significant job tasks that required standing, or were done best by standing, and that providing a seat was likely to lessen performance and increase safety hazards. Additionally, the Court concluded that the employer had made a reasonable, good-faith business decision that standing employees provided, and were perceived to provide, better customer service and such a decision was entitled to weight as it was not arbitrary or a mere preference. 7.11.4 Workplace temperatures providing reasonable comfort Appearing in the Wage Orders right after the once-obscure section 14 (on suitable seating) is the still more obscure section 15, which addresses workplace temperature: (A) The temperature maintained in each work area shall provide reasonable comfort consistent with industry-wide standards for the nature of the process and the work performed. (B) If excessive heat or humidity is created by the work process, the employer shall take all feasible means to reduce such excessive heat or humidity to a degree providing reasonable comfort. Where the nature of the employment requires a temperature of less than 60° F., a heated room shall be provided to which employees may retire for warmth, and such room shall be maintained at not less than 68°. (C) A temperature of not less than 68° shall be maintained in the toilet rooms, resting rooms, and change rooms during hours of use. (D) Federal and State energy guidelines shall prevail over any conflicting provision of this section. Enterprising plaintiffs’ lawyers, invoking PAGA, have sued companies to seek civil penalties for failing to maintain temperatures to “provide reasonable comfort with industry-wide standards.” No published case thus far has provided guidance on the provision. One welcome development in temperature jurisprudence has been a federal district court decision dismissing a section 15 claim where the plaintiff could not cite an applicable “industry-wide standard” applying to temperature in the defendant’s business establishment.329 7.12 Restrictions on Having Employees Pay for Costs of Business California employers must themselves incur all the costs incurred in the normal operation of business, without requiring employees to act as insurers against ordinary business losses. California courts thus have invalidated many wage deductions taken to cover business losses that have resulted from factors beyond the employee’s control or from simple employee carelessness.330 The DLSE also has taken this position.331 7.12.1 Employers cannot use wage deductions to cover business expenses Wage Order upheld by California Supreme Court. Section 8 of most Wage Orders reads: “No employer shall make any deduction from the wage or require any reimbursement from an employee for any cash shortage, breakage, or loss of equipment, unless it can be shown that the shortage, breakage, or loss is caused by a dishonest or willful act, or by the gross negligence of the employee.”
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