I work for a California retail employer. We have tried to stay in line with the state’s myriad wage and hour laws. We’ve audited the exempt status of questionably classified employees. We’ve reviewed and revised our meal and rest break policies. We’ve overhauled our overtime procedures. So far, we’ve avoided becoming a defendant in class action lawsuit. But now I’ve heard about another requirement – that we must provide our cashiers with chairs! Is this a new law?

No.  While the issues you list are still providing ample ammunition for plaintiff class action counsel (i.e., meal and rest break violations, misclassification, etc.), the hot new vehicle for alleging class claims against California employers is a novel and little known provision of California’s Wage Orders, which requires employers to provide certain employees with seats.  Unfortunately for employers, recent case law presages an advancing wave of seating class actions.

The seating requirement is found in Section 14 of Industrial Welfare Commission Wage Orders, which require that all “working employees . . . be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  The Wage Order explains that when employees are not actively working and the nature of their work requires standing, the employer must provide an adequate number of suitable seats in reasonable proximity to the employees’ work area and permit the employees to sit when it does not interfere with their work performance.  Each Wage Order applicable to various industries and employer types contains the seating requirement; thus, retailers are not the only employer subject to the requirement.  That being said, so far plaintiffs’ attorneys appear to be focusing on large retailers, with cases having been initiated against The Home Depot, Blockbuster, 99¢ Only Stores, Rite Aid, and Costco, among others.

The Wage Order does not itself provide for penalties for violating the seating requirement, so plaintiffs’ counsel typically allege the employer violated California Labor Code section 1198, which prohibits an employer from employing an individual under conditions violative of a Wage Order.  A section 1198 claim is then turned into a claim for class-wide relief by relying on California’s Private Attorney General Act (“PAGA”), which allows the recovery of civil penalties when such penalties are not otherwise specifically authorized.  PAGA penalties may be assessed in the amount of $100 for each aggrieved employee per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequent violation.  The possible recovery period is one year.  See Thomas v. Home Depot USA Inc., 527 F. Supp. 2d 1003 (N.D. Cal. 2007). Thus, assuming an employer has 26 yearly pay periods, the maximum damages for a single employee are $5,100 [$100 + (25 * $200)], plus attorney’s fees and costs.  Multiple $5,000 by a standing workforce and damages add up.  Seventy-five percent of assessed penalties go to the government; twenty-five percent go to the aggrieved employees.  Courts generally do not hold it against an employer that it has more frequent pay periods. See Amaral v. Cintas Corp., No. 2, 163 Cal. App. 4th 1157, 1213 (2008).

Until recently, the lone California case involving a potential seating class action reassured employers that such suits were not a threat.  That case, Hamilton v. San Francisco Hilton, Case No. 04-431310 (S.F. Sup. Ct. June 29, 2005), involved guest service agents employed by the hotel, and held seating claims could not be asserted through the PAGA.  Importantly, the court also deferred to the employer’s reasonable business judgment that standing was required by the employees in question.  The court noted that the employees’ job description listed “standing and continual mobility” as an essential function, and, in fact, the employees’ duties did require standing.  The court also deferred to the hotel’s belief that having employees stand enhanced its image.

In the last two years, with the most recent decision coming only a couple of months ago, the Hamilton precedent has taken a back seat to numerous cases where courts have permitted seating cases to go forward.  In Currie-White v. Blockbuster Inc., 2009 WL 2413451 (N.D. Cal. Aug. 5, 2009), a group of cashiers brought claims similar to those in Hamilton.  This time, a federal court applying California law held the PAGA was an appropriate method for seeking penalties.  The court dismissed the case because the plaintiffs failed to allege any facts supporting their allegation that the nature of their work as cashiers for the video rental chain reasonably permitted the use of seats, but allowed plaintiffs to amend their complaint.  More recently, a California state trial court, two state appellate courts, and another federal court have taken seats at the table, allowing seating class actions to be asserted by way of the PAGA.  See Hall v. Rite Aid Corp., Case No. 37-2009-00087938 (S.D. Sup. Ct. Sept. 18, 2009); Bright v. 99¢ Only Stores, 189 Cal. App. 4th 1472 (Cal. Ct. App. 2010); Home Depot U.S.A., Inc. v. Superior Court, 191 Cal. App. 4th 210 (Cal Ct. App. 2010), review denied (Mar. 16, 2011).

Because all of these cases involve purely legal analysis of whether seating claims can be asserted under various statutory frameworks, what the opinions all are missing is any guidance to employers on how they legally can comply with the Wage Order’s seating provisions – that is, what it really means to provide employees with suitable seats and the circumstances under which such seats are required.  Employers should not sit idle.  Rather, the best thing employers, particularly those that operate retail establishments, currently can do is take certain steps that might minimize the chance of becoming a defendant in one of these suits or decrease the possible damages if such a suit is filed.

First, employers should assess the job duties of their various employee types and the suitability and availability of seating.  Employers should determine whether the nature of the work performed by employees “reasonably permits the use of seats.”  Job description revisions may be in order.

Second, employers should categorize job duties into those involving the employee “actively working” versus other duties, and consider whether seating may be appropriate when “active working” is not occurring.  Whether seating may be appropriate will depend on an evaluation of whether seating would “interfere with [employees’] work performance.”

Finally, employers should determine the feasibility of adding seats to employees’ direct work areas (e.g., a swivel chair behind a cashier?), and/or to nearby break areas.  Part of an employer’s assessment may be to reflect on and document how standing by employees is or is not critical to the image the employer wants to portray to the public (i.e., whether that public image constitutes part of the employees’ “work performance”).  Is it important to have employees look busy, and does requiring them to stand while working enhance this portrayal?  It is unclear whether this justification will have legs, but it is certainly worthy of consideration.