Managers unfamiliar with the Industrial Welfare Commission (“IWC”) Wage Order applicable to their businesses may be unaware that California requires most employers to furnish many employees with “suitable” seats to do their work. The U.S. Court of Appeals for the Ninth Circuit has asked the California Supreme Court to interpret the requirement in connection with pending class action lawsuits. If the California Supreme Court takes up the case, its answers could have significant effect on the structure of employees’ jobs, not to mention the physical layout of workplaces all over California.

The Wage Orders’ Suitable Seats Requirement

Wage Orders regulate the wages, hours, and working conditions of California employees. Some wage orders cover entire industries, such as Wage Order 7-2001, which applies to retail. Others cover particular occupations, such as Wage Order 4-2001, which covers most professional, technical, clerical and office workers.

The majority of the wage orders mandate “suitable seats when the nature of the work reasonably permits the use of seats.” The wage orders also require employers to provide an adequate number of seats close to the employees’ work area for them to use when not actively performing job duties. Wage Order 17, which applies to “miscellaneous employees,” does not include a suitable seat provision.

The IWC originally included the suitable language in the wage orders for employees who normally perform work in a sitting position with machinery, tools, and other similar equipment. It was not intended to cover employees whose duties required them to be on their feet, such as salespeople in the mercantile industry. Also, salespeople generally are required to greet and assist customers and move freely about the store to answer questions. These tasks require employees to stand for long periods of time. Thus, California law addresses this type of laborious work by requiring “mandatory rest periods.”

Current Litigation Trends

The suitable seats requirement has been in the Wage Orders for many years. But there had been relatively little litigation on the issue until recently. The increase in suitable seat litigation is likely related to a 2010 decision by the California Court of Appeal in Bright v. 99 Cents Only Stores. The Bright decision gave employees the green light to bring suitable seat lawsuits under California’s Private Attorney General’s Act (“PAGA”) and seek PAGA penalties. PAGA penalties start at $100 per pay period, for each aggrieved employee for the initial violation and increase to $200 per pay period, per employee for each subsequent violation. These penalties are shared with the state. But a successful plaintiff can also recover attorneys’ fees and costs.

Since the Bright decision, suitable seat litigation has dramatically increased. One case, Garvey v. Kmart Corporation, resulted in a decision in the employer’s favor. The court found a legitimate basis for requiring employees to stand because they had to project a “ready-to-assist” attitude to customers consistent with the company’s goal of projecting the appearance of efficient service. Employers have been less fortunate in other cases. In Church v. GameStop, Inc. , for instance, the employer agreed to settle the class action lawsuit for a total of $750,000. In another case, a California federal district court allowed a lawsuit brought by cashiers of a large retailer to proceed, based in part on evidence that scanning and bagging duties could be performed while seated.

The Ninth Circuit’s Questions to the California Supreme Court

The Ninth Circuit has asked the California Supreme Court how to determine whether the “nature of the work” requires suitable seats and “reasonably permits” the use of a seat. The federal court wishes to know if the reference to the “nature of the work” means an individual task or duty that an employee performs during the course of a workday? Or should the “nature of the work” be an evaluation of the entire range of an employee’s duties? Should courts consider 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 in determining whether the work “reasonably permits” the use of a seat? And does an employee have to prove what equals a “suitable seat” to show that the employer violated the wage orders?

The employees in the federal cases want the court to decide that employers must provide seats if the employee is engaged in a task that can be “objectively performed” while seated, without regard to the employee’s other tasks or the employer’s business decision to have the employee stand. The employers urge that they need not provide suitable seats unless the entire range of tasks the employees perform, the layout of the workplace, the employer’s business judgment concerning the employee’s job, and any other factors the court deems relevant, “reasonably permit” the use of a seat.

The employees’ approach would impose a new, major burden on employers. Employers would have to evaluate each task an employee performs during the workday. Employers would then have to provide a seat for that particular task if it objectively allows for the use of a seat. Employers may also have to provide a seat with wheels if movement is required within the workplace, because such a seat is arguably “suitable” for employees to complete their job duties. Employers would have to design work spaces, manufacturing operations, counter heights, and the like to accommodate the seats.

As the Ninth Circuit correctly noted, the answers to its questions will have a significant effect on California employers. The Court estimates that the PAGA penalties at issue in the cases before it could reach into the tens of millions of dollars. Employers potentially may have to spend millions of dollars more to provide seats and reconfigure workspaces. Also, how the courts define the “nature of the work” for suitable seating may affect other aspects of the California Labor Code, such as defining the “nature of the work” for purposes of implementing on-duty meal period agreements.

Tips for Employers

The California Supreme Court has not yet decided whether it will provide much needed guidance to the Ninth Circuit. In the meantime, employers should review their current job descriptions and provide seats when reasonable. Employers should carefully document all business reasons why reasons seats cannot be provided; keeping in mind that cost alone is not enough to forego the obligation. Also, consider implementing a policy that allows suitable seating if the nature of the work reasonably permits using seats.