Why it matters: An employer won a rare victory in a suitable seating case when a California appellate court affirmed summary judgment in a suit brought by a sample worker. Class actions brought in the state alleging violations of California Wage Orders requiring employers to provide “suitable seating” for employees have inundated the courts. To avoid protracted litigation over uncertain legal issues many employers have opted to settle. But in an unpublished opinion, an appellate panel determined that a seat is not necessary for on-the-clock downtime.

Detailed Discussion

As an event specialist for Advantage Sales and Marketing, James R. Howard was required to attract and engage with store customers to attempt to persuade them to purchase the products he demonstrated. For all or substantially all of his job duties, typically performed standing behind a demonstration table or cart, Howard had to stand. During his three 30-minute breaks, Howard was always able to find a seat in a break room.

Although he never requested a seat or complained that he needed one during his employment, he later sued Advantage alleging the company violated California Wage-Order No. 7-2001.

The Wage Order mandates that: “(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats. (B) 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.”

Affirming summary judgment for the employer, the court said Advantage satisfied the requirements of the order. “The undisputed material facts establish Howard’s work as an event specialist demonstrating products in grocery stores required that he stand while engaged in his active work duties,” the court wrote. “The undisputed material facts also establish Advantage provided Howard with suitable seating within reasonable proximity to his work area for his use when he was not engaged in active duties of his employment, within the meaning of the wage order.”

Howard argued that he should have been allowed to sit down while performing his passive duties, such as cutting up sample cookies and fruits, distinguishing this time from his “active duties” that required standing. But this approach would require courts to parse out duties and activities “instead of approaching the issue from examining the nature of the work, as required by the language of the work order,” the court noted.

The panel declined to compartmentalize Howard’s job duties and took a holistic approach to the position.

“The wage order does not support Howard’s interpretation. The wage order does not define the term ‘active duties’ and the wage order never refers to ‘passive duties,’” the panel wrote. “[T]he term ‘active duties’ reasonably refers to the time when an employee is on duty as opposed to on a rest or meal period. Although not actively performing their work duties, employees on rest or meal periods still have duties to their employers, such as to comply with workplace rules while on breaks. The wage order requires Advantage to allow Howard to be seated in provided seats to the extent he is on such a break from his active duties.”

The interpretation of the wage order to require seating on break was not meaningless, the court added, because the provision of seating during rest breaks is not addressed in other wage orders.

To read the opinion in Howard v. Advantage Sales and Marketing, click here.