Tseng v. Nordstrom, Inc.

Case No.: 2:11-cv-08471-CAS (MRWx)

U.S. District Court for the Central District of California

We have filed a “suitable seating” claim against Nordstrom related to its failure to provide seating to its Cosmetic Counter Employees. Plaintiff asserts this claim pursuant to California’s Private Attorneys General Act, which allows her to prosecute Labor Code violations on behalf of the Labor Commissioner. Plaintiff asserts that the nature of the work of Nordstrom’s Cosmetic Counter Employees reasonably permits the use of seats and seeks to recover civil penalties on behalf of herself and other aggrieved employees due to Nordstrom’s refusal to provide such seats.

See the complaint here.

Case updates

Court Denies Nordstrom’s Summary Judgment Motion: On March 25, 2013, the Court denied Nordstrom’s motion for summary judgment on Plaintiff’s suitable seating claim, concluding that there were disputed issues of material fact regarding whether the nature of Cosmetic Counter Employees’ work reasonably permitted the use of a seat and further holding that Nordstrom’s business judgment was not entitled to ultimate deference.

Court Denies Plaintiff’s Motion for Class Certification: On January 15, 2014, the Court denied Plaintiff’s motion for class certification of her suitable seating claim without prejudice. Acknowledging that “[t]he issue of whether PAGA actions must comply with Rule 23 has divided the courts,” the Court, however, expressly declined to rule on whether Ms. Tseng’s PAGA action could proceed absent class certification.

California Supreme Court Issues Guidance on Suitable Seating Law: On April 4, 2016, the California Supreme Court’s unanimous Kilby v. CVS decision provided important guidance about the meaning of California law’s requirement that employers provide seats to employees “when the nature of the work reasonably permits the use of seats” that will be relevant in the ongoing litigation of the Nordstrom case.

Court Denies Nordstrom’s Motion for Judgment on the Pleadings: On December 19, 2016, the Court denied Nordstrom’s motion for judgment on the pleadings on Plaintiff’s suitable seating claim and declined to impose a “manageability” requirement, finding that such a requirement makes “little sense” in the PAGA context. The Court went on to hold that “[w]hether plaintiff can, in fact, represent other employees—including those who did not work at the same counters and stores as she did—depends on the Kilby factors that determine whether ‘the nature of the work reasonably permits the use of seats.’”