Roosevelt Luckett worked for a McDonald’s restaurant located on Venice Boulevard in Los Angeles.From time to time, Luckett worked in the drive-thru cash booth. Luckett asked whether he could use a seat in the drive-thru cash booth, and McDonald’s denied his request. His employer operated approximately 78 corporate McDonald’s restaurants in California with drive-thru cash booths.
Luckett sued his former employer, McDonald’s Restaurants of California, Inc. under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). Luckett alleged McDonald’s violated Industrial Welfare Commission Wage Order No. 5-2001, section 14(A), which requires employers to provide suitable seats to their employees “when the nature of the work reasonably permits the use of seats,” and section 14(B), which requires an employer to provide suitable seats in reasonable proximity of the work area for employees to use during lulls in operation. (Cal. Code Regs., tit. 8, § 11050, subd. 14(A) &(B) [Wage Order No. 5-2001];
McDonald’s moved for summary judgment. McDonald’s argued (among other issues) that there was no factual dispute that the nature of the work did not reasonably permit the use of a seat at its drive-thru cash booths. It argued the booths were a tight workspace, designed for standing, and the fluidity of movement required to service customers (including frequent foot movements, reaching, bending, shifting, and twisting) could not be reasonably performed from a seated position. Additionally, placing a seat in the booth would create a tripping hazard. McDonald’s also argued that Luckett failed to exhaust administrative remedies as required under PAGA with respect to his section 14(B) claim and thus, the claim was procedurally barred.
Defendant’s evidentiary submission in support of its motion included among other things the declaration of its operations manager in California since January 2013, Saad Sabbagh, the declaration of McDonald’s then-director of customer experience, Michael Cramer, and the report of a retained ergonomics expert, Jeffrey Fernandez, PhD.
The trial court granted the motion, finding there was no factual dispute that the nature of the work did not reasonably permit use of a seat in McDonald’s California drive-thru booths. The Court of Appeal affirmed the summary judgment In the unpublished case of Luckett v. McDonald’s Restaurants of California -B317481 (November 2023).
In Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1,the California Supreme Court explained, “Whether an employee is entitled to a seat under section 14(A) depends on the totality of the circumstances. Analysis begins with an examination of the relevant tasks, grouped by location, and whether the tasks can be performed while seated or require standing. This task-based assessment is also balanced against considerations of feasibility. Feasibility may include, for example, an assessment of whether providing a seat would unduly interfere with other standing tasks, whether the frequency of transition from sitting to standing may interfere with the work, or whether seated work would impact the quality and effectiveness of overall job performance. This inquiry is not a rigid quantitative analysis based merely upon the counting of tasks or amount of time spent performing them. Instead, it involves a qualitative assessment of all relevant factors.” (Id. at pp. 19-20.).)
Drive-thru cash booth employees have primary and secondary duties. Their primary duties include taking orders and completing payment transactions for drive-thru customers, and providing “excellent customer service” while doing so. For example, Sabbagh observed, “It is McDonald’s expectation that employees in the cash booth reach out to customers who are sitting in their vehicles, rather than make our guests take off their seat belts, stretch, or open their vehicle doors to reach in toward the employee during a payment transaction.” Sabbagh also declared that McDonald’s places great emphasis on the guest experience and speed of service. Therefore, McDonald’s tracks the speed of service for each restaurant and provides training regarding how to diagnose and fix slowdowns.”
“There is seating in the crew break room to ensure that employees are able to sit and rest during their formal breaks. However, generally speaking, outside of these breaks, it is not acceptable to McDonald’s for an employee to be sitting down and doing nothing while on duty – except, perhaps, as an accommodation for a medical issue.” Thus, to provide the requisite level of service, McDonald’s expects its employees to remain busy between customer transactions by performing secondary duties.
Because the work in the cash booth is most appropriately done from a standing position, McDonald’s generally only allows employees to sit as an accommodation for medical reasons.
In assessing feasibility, the employer’s business judgment and the physical layout of the workspace may be relevant considerations. (Kilby, supra, 63 Cal.4th at pp. 21-22.) However, physical differences among employees are not relevant to the section 14(A) inquiry. “That provision requires a seat when the nature of the work reasonably permits it, not when the nature of the worker does.” (Kilby, supra, at p. 23.)
The Court of Appeal Concluded by noting “Luckett has not demonstrated a genuine issue of material fact as to whether it is feasible to place a seat in the drive-thru cash booths.”