A wave of wage and hour class actions have been filed in California against retail employers over lack of “suitable seating” for their employees. These cases are based on California Industrial Welfare Commission Wage Order 7-2001, section 14, which requires that:

(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of such seats. (B) When employers are not engaged in the active duties of their employment and the nature of their 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.

Such cases have been brought against retail grocers, pharmacies, wholesale chains, and clothing stores, among others. The cases all make the same or similar allegations: that the employer did not place a reasonable amount of seats within close proximity to the employees’ work area and did not permit the use of seats by employees even when doing so did not interfere with their work duties.

These recent cases follow on the heels of two rulings handed down by a California state appeals court in late 2010. One of those decisions found that a cashier at a discount retail chain could seek civil penalties because a violation of Wage Order 7 constituted a violation of the California Labor Code and thus allowed for penalties under the California Private Attorneys General Act (PAGA). This result is troubling because PAGA allows for civil penalties even when employees have not suffered a monetary harm based on the alleged violation of the Labor Code. In one of the recent appellate decisions, the court specifically found that the PAGA’s statutory penalties — $100 for each aggrieved employee per pay period for the first violation and $200 for each additional pay period in which the violation occurred — were not excessive or improper.

The class actions have been mainly limited to retail stores, but other California employers, including restaurants and manufacturers, may be targeted in the future, as Wage Order 7 applies broadly to all industries, businesses, or establishments operated for “the purpose of purchasing, selling, or distributing goods or commodities at wholesale or retail, or for the purpose of renting goods or commodities.”

Employees do not need to request seating in order to bring a claim under Wage Order 7, so employers need to be proactive about providing reasonable seating. As a result, such employers should ensure compliance with the California wage orders by analyzing their procedures and job descriptions to determine whether they can make reasonable business determinations about providing seating.