Since 2009, many large retailers in California have been sued for failing to provide “suitable seating” in accordance with the state’s wage orders. Some of those employers have recently been forced to pay significant settlement awards, providing another cautious reminder to employers of the importance of complying with California’s suitable seating requirements.

California wage orders generally require that “[a]ll working employees [] be provided with suitable seats when the nature of the work reasonably permits the use of seats.” See, e.g., Wage Order No. 7-2001, § 14(A). Some employers have interpreted this standard as meaning that they may deny employees seats if the majority of an employee’s job duties require standing. For example, if the majority of a sales employee’s duties require the employee to freely move throughout the store to stock and organize products or to answer questions and assist customers, an employer might argue that the “nature of the employee’s work” does not reasonably permit the employee to use a seat. This so-called “holistic approach” was, however, rejected by the California Supreme Court in Kilby v. CVS Pharmacy, Inc.

In Kilby, the California Supreme Court held that employers may not deny employees seats solely because some, or a majority, of an employee’s tasks may require standing. Rather, employers must evaluate each subset of job duties to determine whether a particular set of duties at a particular location may be performed while seated. Employers should consider the totality of the circumstances, including the employer’s business judgment and expectations and the physical layout of the relevant area of the workplace. If the subset of job duties at a particular location can be reasonably performed with a seat, the employer must provide seating unless the employer can show that compliance is infeasible or impractical because, for example, seating would impact the quality and effectiveness of overall job performance. The ultimate touchstone of the inquiry is “reasonableness,” and evidence that seats are used to perform similar tasks under other similar working conditions may indicate that it would be reasonable to provide a seat to the job task in question.

A failure to provide suitable seating when doing so would be reasonable, but can be quite costly. Late last year, Bank of America paid $15 million to settle a class action suit brought by bank tellers against the company for failure to provide suitable seating. More recently, in March 2017, Abercrombie & Fitch agreed to pay $700,000 to settle a similar class action brought by sales associates. These settlements serve as a cautionary reminder to other employers to review their company workplace practices in light of the California Supreme Court’s mandate in Kilby. Employers should also consider whether they should draft a suitable seating policy to help mitigate against future claims. Incorporating a suitable seating policy in the company’s handbook can help ensure that a company-wide standard is being applied at each location and that employees are aware of the seating opportunities available to them.