Class Action Alleges Walmart ‘Ignored’ Terms of Calif. Cashier Seating Settlement

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Five current and former California Walmart employees allege in a proposed class action that the ultra-retailer has breached the terms of a $65 million settlement finalized in March 2019 over a lawsuit centered on the company’s failure to provide front-end cashiers with suitable seating.

Noting that U.S. District Judge Edward J. Davila expressed concern in October 2018 over the vagueness of a proposed deal before the parties came back with a new settlement ultimately given the green light, the plaintiffs allege in the 18-page case that Walmart has nevertheless failed to provide front-end cashiers with seats without the employees having to ask for one, a condition of the settlement.

In short, Walmart, the lawsuit claims, never implemented or maintained in California the agreed-upon “Seating Program,” a failure the plaintiffs say was “intentionally concealed from the Court, Class Counsel, the Class, the [Labor and Workforce Development Agency] and future cashiers.” 

“No one had reason to believe that Walmart would have the brass to ignore a federal court judgment,” the complaint scathes. “The settlement had been reached with the aid of a respected mediator and Walmart was represented by a nationally known law firm.” 

The case relays that a proposed class and enforcement action was filed against Walmart in California on June 11, 2009 over the retailer’s failure to provide front-end cashiers with suitable seating. That lawsuit—Nisha Brown, et al. v. Wal-Mart Stores, Inc., et al.—was subsequently assigned to Judge Davila after being removed to federal court in California’s Northern District.

After years of litigation and appeals, in particular a California Supreme Court decision in a lawsuit against CVS Pharmacy, Inc. over the subject of providing reasonable seating to employees, Walmart’s appeal of the Brown class action was denied, triggering class certification. 

In October 2018, the parties entered into a proposed settlement agreement to end the lawsuit on a class-wide basis, the suit goes on. As part of the deal, Walmart agreed to pay $65 million to resolve the lawsuit, as well as implement a “pilot seating program” for front-end cashiers, the complaint shares. When the time came to consider preliminary approval of the proposed deal, however, Judge Davila “expressed concern regarding the vagueness” of Walmart’s promise to provide seating, noting the settlement “effectively gave Walmart an easy ‘out’ to stop providing” cashiers with seats if the company determined that doing so was “appropriate in their sole business discretion,” the suit says.

Moreover, Judge Davila cautioned that the public might perceive the settlement as “what appears to be a large corporation buying a release of claims from their employees with an illusory promise to provide seats,” the lawsuit says, adding that Judge Davila further suggested Walmart should come back and explain itself to the court should it decide to modify and/or end its seating program. 

More than a month later, the parties entered into a revised settlement agreement that set forth “new and quite different terms” with regard to the defendant providing seats, according to the complaint. In contrast to the old settlement, the new deal, in pertinent part, required Walmart to provide cashiers with seats without the workers having to ask for them, the case says. From the complaint: 

“Thus, the new language was congruent with an employer’s affirmative duty under the Wage Order to provide a seat without the employee asking for a seat – Walmart had to provide at or near the checkstands a sufficient number of suitable seats so that any cashier choosing to use one, could take one.” 

Still further, the settlement agreement laid out the timing for when Walmart would implement its new seating program, the case says, as well as “clarified and narrowed” the circumstances under which Walmart could end the program: 

“Further, the Settlement Agreement called for Walmart to notify class counsel, and the Labor & Workforce Development Agency 100 days in advance of its decision to terminate the seating program and required a meet-and-confer process with class counsel, at class counsel’s option, regarding their decision to terminate.”

The plaintiffs contest, however, that Walmart “never intended to implement or maintain the Seating Program,” even though the defendant’s legal counsel signed and filed with the court a report affirming that Walmart had already held up its end of the bargain at all California locations. According to the case, Walmart had a deadline of May 18, 2019 by which to provide notice to all front-end cashiers of the availability of seats, and within 90 days of the notice had to actually furnish the seats, by August 16, 2019.

To date, the lawsuit says, it appears Walmart has not followed through on the agreed-upon terms: 

“A recent survey of a randomized sample of Walmart’s California stores showed that a mere fraction of front-end cashiers have actually been provided with seats, with the majority of front-end cashiers still being required to stand during their shifts. In early July 2020, a total of 45 Walmart stores were visited by licensed investigators who were to note the the [sic] presence of seats at front-end checkstands. Those stores were also checked for the number of front-end cashiers making use of a seat at their checkstand. 

The results of those visits showed that out of approximately 419 traditional front checkout stations (registers) and 199 cashiers working, only 21 seats were observed at or in the vicinity of a checkout stand, and only 6 seated cashiers were observed. At most Walmart stores in California there are self-checkout point of sale registers referred to as ‘Scan and Go.’ A group of these scanners, usually 4 to 10, are attended by a cashier who has a traditional register. These visits showed that out of 82 cashiers working at these self-checkouts, only 8 seats were available, and 2 cashiers were seated.” 

The lawsuit looks to cover those who were considered class members in the class certified by Judge Davila on August 24, 2012, i.e. all persons employed as front-end cashiers by Walmart in California between July 11, 2008 and December 6, 2018. Moreover, the suit proposes to cover all individuals who worked as a front-end Walmart cashier in California from December 7, 2018 through the date the proposed class action detailed on this page goes to trial.

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