California employers generally are covered by one or more Industrial and Welfare Commission Wage Orders. The Wage Orders specify minimum requirements for wages, hours and certain working conditions. Most Wage Orders require employers to provide “suitable seats when the nature of the work reasonably permits the use of seats.”

The California Supreme Court recently interpreted this provision in Kilby v. CVS, Inc., a consolidated case involving retail pharmacy workers and bank tellers. The result is that employers must review their policies, operations, and physical work areas to ensure workplace seating is legally sufficient.

“The Nature of the Work”

The Court decided the term “the nature of the work” refers to the tasks that an employee performs at a specific working location, for which the right to a seat is claimed. Under this approach, whether an employee is entitled to a seat is not an all-or-nothing proposition. A job is not either a “standing” or a “sitting” job. Instead, an employer must evaluate the employee’s actual work tasks grouped by their location, such as those performed at a cash register or a teller window, and consider whether it is feasible to perform each set of location-specific tasks while seated. If the tasks performed at the location reasonably permit seating, and a seat would not interfere with the performance of other tasks that may require standing, then the employer must provide a seat.

The nature of the work is an objective inquiry, based on the totality of the circumstances. Relevant factors include the frequency and duration of tasks performed at a particular location and the ease with which the employee can transition between sitting and standing tasks. The employer’s business judgment regarding performance expectations is also a relevant factor. For example, a restaurant owner may decide that customer service standards prohibit a waiter from asking guests to scoot over so he can sit with them as he takes their order. Or a sales associate may spend the majority of time walking the floor, greeting customers as they enter the store and then answering questions and assisting customers in their purchases. If that same associate also rings up purchases, which could be performed from a sitting position, the retailer may require that the sales associate perform cashiering functions while standing, so that he or she can more readily transition back to the sales floor. So, employers may reasonably expect that certain tasks must be performed while standing.

Notably, the Wage Orders require a seat when the nature of the work reasonably permits it, not based on the workers’ needs or desires. The suitable seating provision does not require or consider accommodations for physical differences among employees that may be required for a particular worker under other laws.

Employers’ Obligations If the Nature of the Work Does Not Permit Seating

Some employees’ work cannot be performed while seated. The nature of the work for flight attendants, tour guides, line cooks, and construction workers, for example, may require that employees stand for most of the workday. However, the Wage Orders also require that “[w]hen 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.” Under this provision, employers must provide seating if there are “lulls” in operation that would allow the employees to sit while waiting for work to resume.

If an employee performs both “seated” and “standing” work, the seat provided at locations where the employee performs the seated duties can satisfy the requirement to provide the employee with a seat during lulls in operations for “standing” work. However, the seat has to be within a “reasonable proximity” to the employee’s “standing” work area. Otherwise, the employer must make an adequate number of seats available to “standing” employees.

Employer’s Burden to Demonstrate Suitable Seating Is Unavailable

The Wage Orders place the burden on the employer to prove that no suitable seat was possible under the circumstances unique to the workplace. Employers therefore must ensure that physical facilities and work areas truly preclude placement of seating. Employers also must research different types of seating that may fit the work area, such as space efficient or even collapsible seats. It may be necessary to consult with space planning experts to alter the work environment to comply with the Wage Order, or risk a challenge from a plaintiff’s attorney’s expert.

Risks for Employers

Failure to provide suitable seating may subject an employer to lawsuits for injunctions, civil penalties and attorneys’ fees under the Unfair Competition Law and California’s Private Attorneys General Act (PAGA). If a plaintiff successfully asserts a class action claim, it could result in significant liability to multi-operation employers, or employers with large numbers of employees who are deprived seats.

Employers can take proactive steps to avoid such claims. Employers should reassess an employee’s job duties by location to determine whether employees are entitled to seats for certain tasks, and provide seats to all employees who perform tasks that can be reasonably done while seated. And for employees who perform “standing” work, employers must be sure that employees have access to a seat within reasonable proximity of their work area.

Although the Wage Orders’ suitable seating requirement does not address individual situations when employees may request a chair or periodic sitting as a reasonable accommodation, employers should have in place policies and procedures through which employees can raise 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.

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