Rhonique Green v. Bank of America National Assoc

MEMORANDUM

Rhonique Green and Olivia Giddings appeal the district court’s order granting Bank of America’s motion to dismiss. We have jurisdiction under 28 U.S.C. § 1291 and now reverse and remand.

Wage Order 7-2001 § 14 states: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” The district court erred when it assumed a requirement, not in the text of the Wage Order, that employees must request seating before it is offered.

Plaintiffs alleged that the nature of their work reasonably permits the use of seats. Because we are reviewing a dismissal for failure to state a claim, we assume for purposes of decision that the factual allegations of the complaint are true. See Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1014 (9th Cir.2012). We intimate no view on whether such seating as may be provided to the employees is “suitable.” Nor do we intimate any view as to whether the nature of their work “reasonably permits the use of seats.” Those factual issues may be developed on remand.

Likewise, Bank of America’s argument that any award under California’s Private Attorneys General Act, Cal. Lab.Code §…