• Plaintiffs have hit California employers, particularly in the retail and banking industries, with lawsuits
  • California employers should review whether employees not provided seats for all or part of their work must be allowed a seat

In a decision with wide potential impact, the California Supreme Court for the first time interpreted an obscure provision in the state’s wage orders requiring that employers provide employees with seats. Given the proliferation of lawsuits, employers should study employees’ duties and work locations carefully to determine whether they need to provide employees with seats while working.

California’s Seating Requirements

California’s wage orders have had some seating requirement for decades. Fourteen of the Industrial Welfare Commission’s 17 wage orders (Nos. 1-13, and 15) have the same seating requirement. Section 14(A) of those wage orders provides: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Separately, section 14(B) requires: “When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

With the reference to “[all] working employees,” the seating provision generally applies to all employees that these 14 wage orders cover. They do not exclude overtime non-exempt employees, who are exempt from certain other provisions. Outside sales employees, however, are exempt.
 
Wage Order No. 14 (Agricultural Occupations) requires suitable seats for “employees working on or at a machine” and when “the nature of the work reasonably permits the use of seats.” Wage Order No. 16 (Certain On-Site Occupations in the Construction, Drilling, Logging, and Mining Industries) requires seats for employees “[w]hen practicable and consistent with applicable industry-wide standards” and “when the nature of the process and the work performed reasonably permits the use of seats.” Wage Order No. 17 (Miscellaneous Employees) has no seating requirement.

Why Has Seating Become An Issue?

The Labor Commissioner can enforce the wage order’s seating requirements. Alternatively, an employee may sue for civil penalties under the Labor Code Private Attorney General Act. Labor Code section 1198 prohibits employing an individual under conditions violating a wage order. Two California Court of Appeal decisions held that an employee may sue for civil penalties under this statute, if an employer does not comply with seating mandates. Potential civil penalties are $100 per aggrieved employee per pay period for an initial violation, and $200 per aggrieved employee per pay period for subsequent violation. 

In recent years, plaintiffs have hit California employers with lawsuits alleging denial of seats while working. The lawsuits have focused on the retail and banking industries, although other employers could face these claims.

The Court’s Ruling

The California Supreme Court’s decision in Kilby v. CVS Pharmacy, Inc. is the first published decision from a California state court interpreting the seating mandates. It involved two lawsuits: one by a retail cashier, and a second by a bank teller. Although the court did not rule on those specific situations, it interpreted the wage order’s requirements to provide guidance.

First, the court addressed what is the “nature of the work” giving rise to having to provide seats. It rejected the employers’ arguments that this term requires considering the employee’s job as a whole, or weighing all tasks against each other to classify the job as a “standing” or “sitting” job in all respects. The court also rejected, as “too narrow,” the employees’ argument that the “nature of the work” turns on a task-by-task evaluation of whether an employee may perform a single task while seated – regardless of how short or infrequent the task.

Instead, the court adopted a middle ground based on a specific work location. Determining whether the nature of the work reasonably permits using a seat thus requires examining “subsets of an employee’s total tasks and duties by location,” such as a cash register or teller window, and whether it is feasible to perform “each set of location-specific tasks while seated.” The court emphasized that the consideration must be based on actual tasks performed or reasonably expected, with tasks performed more frequently or for a longer duration having greater importance.

Second, the court addressed what considerations bear upon whether work “reasonably permits” the use of seats. It concluded that reasonableness depends on “the totality of the circumstances.” The analysis starts with examining “relevant tasks, grouped by location, and whether the tasks can be performed while seated or require standing.” However, the court held that this task-based assessment is “balanced against considerations of feasibility.” This qualitative analysis includes such factors as assessing whether a seat would “unduly interfere” with standing tasks, whether moving between standing and sitting would interfere with work, and whether sitting would “impact the quality and effectiveness of overall job performance.” 

An employer’s business judgment may be considered, as long as it involves an objective consideration of whether duties may be best performed while standing. The court cautioned that business judgment cannot be only an employer’s “mere preference” that tasks be performed while standing, nor does it permit employers “unlimited ability to arbitrarily define” tasks as “standing” ones. 

Likewise, the physical layout of a work location may be a limited consideration, as it “may inform the expectations of both the employer and employee with respect to job duties.” Yet, an employer may not “unreasonably design a workspace to further a preference for standing.” However, an employer cannot consider physical differences between employees.

Finally, the court was clear that the burden is not on the employee. To the contrary, if an employer maintains that it does not have to provide seating, it “bears the burden of showing compliance is infeasible because no suitable seating exists.”

What To Do?

California employers should review whether employees not provided seats for all or part of their work must be allowed a seat. Employers should consider whether to provide a seat regardless of whether an employee has made a request. The wage order does not require a request, and federal courts have held that an employee does not have to make a request for the seating requirement to apply. This review should be individualized. An unresolved question is what type of seat is “suitable.” Because of the many considerations involved, employers may wish to consult the advice of legal counsel to comply.