Question: We are a retail store.  An employee in the warehouse requested an assigned chair to sit on when he is between tasks.  Must we comply with this request in our California locations?

Dorsey’s Analysis: By Jessica Linehan and Gabrielle Wirth

Yes.  California employers must comply with the Wage Orders promulgated by the California Industrial Welfare Commission.  Wage Order No. 7 governs employment in the retail industry.  Section 14 of Wage Order No. 7 provides:

“(A)     All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats; and

(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.”

This Wage Order has been the subject of many lawsuits against retailers across California.  The most notorious cases were filed against Home Depot and 99¢ Only Stores.  In both cases, the California appellate courts ruled that failing to provide suitable seating for employees may violate the requirements of the Wage Order and Labor Code § 1198, which provides in relevant part, that “The employment of any employee…under conditions of labor prohibited by the [Wage] order is unlawful.”  Importantly, an employer’s failure to provide suitable seating may independently give rise to costly civil penalties under California’s Private Attorney General Act (PAGA) (California Labor Code §§ 2698 et seq.), which provides a separate penalty for each aggrieved employee for each pay period in which the violation took place.  The penalty for an initial violation is as much as $100 per employee per pay period and doubles for subsequent violations.  Although successful plaintiffs must share these penalties with California’s Labor and Workforce Development Agency, the total cost to employers of a class claim can be significant, especially considering that PAGA also provides for an award of attorneys’ fees and costs.

Of course, dozens of cases, hoping to piggyback off the Home Depot and 99¢ Only Stores cases, followed.  Some employees prevailed by proving that seating was not reasonable given the nature of the work.  This issue was highlighted in two proposed class actions in which class certification was denied.  The first case was brought against the CVS retail chain by its cashiers.  Cashiers at CVS allegedly spend about 90% of the time working a cash register and ringing up transactions.  The other 10% of the time, cashiers were expected to walk around the store while performing various tasks. CVS did not provide seats for their cashiers, believing that standing employees provide better customer service.  The CVS plaintiff had been told that her job involved extensive standing when it hired her. The second case was brought against JP Morgan Chase Bank by its bank tellers.  Tellers spent a great deal of time at their teller windows, making deposits, processing withdrawals, etc.  They also escort customers to safety deposit boxes, check ATMs and perform other duties that require mobility.

The Ninth Circuit consolidated these cases and certified to the California Supreme Court the following three questions:

  1. Does the phrase “nature of the work” refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe “nature of the work” holistically and evaluate the entire range of an employee’s duties?
    1. If the courts should construe “nature of the work” holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?
  2. When determining whether the nature of the work “reasonably permits” the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?
  3. If an employer has not provided any seat, does a plaintiff need to prove what would constitute “suitable seats” to show the employer has violated Section 14(A)?

Once the California Supreme Court provides guidance on these three key questions, Dorsey will update this blog with the impact it has on employers and managers in California.  In the meantime, employers and management should take care to:

  1. Examine work positions that require employees to stand for extensive periods;
  2. Determine whether an adequate number of suitable seats can be placed in reasonable proximity to the work area; and
  3. Implement procedures that allow employees to use such seats while not unreasonably interfering with the performance of their duties.