Employers in California are required to provide “suitable seats” to employees when the nature of the work “reasonably permits” it. Litigation to enforce this requirement is on the rise, so employers should familiarize themselves with the rule and how courts have interpreted it.

The Wage Order’s Requirements

California’s suitable seating requirement is not found in statutory law, but in the “wage orders” promulgated by the Industrial Welfare Commission. Most of the wage orders require that working employees be provided seats “when the nature of the work reasonably permits [it].” The wage orders also require employers to provide “an adequate number of suitable seatsäó_ in reasonable proximity to the work area,” which employees must be allowed to use when it does not interfere with their duties.

Suitable seating lawsuits are a relatively new phenomenon, although the wage order provision s is not. Litigation has increased in recent years as plaintiffs have had opportunity to bring collective actions on behalf of themselves and others under California’s Private Attorneys General Act (PAGA), without meeting the more stringent requirements of class certification. In particular, large retailers such as Home Depot, Kmart, Blockbuster Video, and 99 Cent Only Stores have been subject to these suits, based on allegations that these companies do not provide seats to cashiers.

An Affirmative Obligation

Courts have interpreted the seating requirement to be an affirmative obligation. Thus, in Home Depot U.S.A. v. Superior Court, the Second District Court of Appeal rejected the defendant’s contention that it only needed to ensure employees were not denied a seat.

Employees, on the other hand, have no affirmative obligation to request a seat, at least according to a recent unpublished decision from the Ninth Circuit Court of Appeals. In Green v. Bank of America, the court reasoned that nothing in the wage order includes the prerequisite. The ruling indicates to employers that they, but not their employees, must take affirmative steps to ensure employees have seats in appropriate circumstances.

Successful Defenses

Some employers have prevailed in these cases by establishing that providing seating is not “reasonable” (a term undefined by the wage order). For example, in Garvey v. Kmart Corporation, the large retailer successfully defended its practice of requiring cashiers in its Tulare store to stand. Following a bench trial, the Northern District of California’s district court determined that Kmart proved it had a “genuine customer-service rationale” for requiring cashiers to stand, because customers who are themselves standing in line are focused on the cashier’s efficiency and appearance of efficiency.

The court in Garvey suggested that the best solution for plaintiffs might be a “lean-stool,” which allows an individual to place his or her weight on a supported seat, without actually sitting down. While the Garvey court’s order stated that such a stool meets the definition of “seat” in the wage order, it is unclear whether other courtsäóîor the Division of Labor Standards Enforcement, which enforces many of the state’s wage and hour rulesäóîwould agree.

Penalties

Although the wage orders provide specific penalties when employees are “underpaid,” they do not contain a specific penalty for failure to provide suitable seating. Consequently, plaintiffs have successfully claimed they may recover penalties under PAGA. PAGA permits plaintiffs to bring suit for violations of the Labor Code for which there is otherwise no specific penalty. Plaintiffs may bring collective actions to recover penalties of up to $100 per employee per pay period for an initial violation, then $200 per employee per pay period for each subsequent violation, as well as attorney’s fees. The penalties awarded must be shared with the state Labor and Workforce Development Agency.

Employers have unsuccessfully challenged PAGA’s applicability to suitable seating cases. For example, in Bright v. 99 Cent Only Stores, the defendant argued PAGA did not apply because the plaintiffs’ claim was for violation of a wage order (which included the inapplicable remedy, above), not the Labor Code. However, the court disagreed, finding the failure to provide suitable seating could violate Labor Code 1198, which prohibits employment under “conditions of labor” prohibited by the wage orders. The Home Depot court reached the same conclusion on this issue.

Employer Best Practices

Given the ease with which plaintiffs can bring suitable seating lawsuits on behalf of themselves and others, the lack of guidance about the requirements, and they opportunity for plaintiffs’ attorneys to recover their fees, employers should not expect suitable seating cases to go away anytime soon. Although large employers who do not provide seating to all employees have been frequent targets of these suits, all employers can take proactive steps to avoid them.

Of course, employers should ensure employees whose jobs permit seats have access to them. And if employers do not provide seats to all employees, they should take particular care to communicate the rationale (e.g., the importance of customer perception). Also, employers should structure jobs for which no seat is provided to ensure frequent movement, so that employees without immediate tasks in front of them are refocused (e.g., restocking or arranging shelves) rather than idle. Finally, employers should request employees bring concerns about their working conditions or equipment (including seating) to the employer’s attention, so the employer has the opportunity to address the concerns and potentially avoid a lawsuit.