By:  Michael Kun

Employers who do business in California are already well aware of the wage-hour class actions that have besieged employers in virtually every industry.   Class claims for misclassification of employees as exempt employees or independent contractors first began to be filed more than a decade ago, and continue to be filed on a daily basis.  Claims for alleged work off-the-clock and missed meal and rest periods by non-exempt employees generally began later, but continue to be filed at an alarming rate. 

Now we can add to those cases a new wave of California class actions, alleging that employees have been denied “suitable seating,” as required by various Industrial Welfare Commission Wage Orders.  News of two recent Court of Appeal decisions permitting such claims has spread among the plaintiffs’ bar, which is now filing such claims against retailers throughout the state.  Other industries where employees frequently are on their feet, particularly the hospitality industry, are soon to follow.

Making matters worse, the Wage Orders with which employers are expected to comply only provide generally that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  Nowhere in the Wage Orders or elsewhere are the phrases “suitable seats,” “nature of the work” or “reasonably permits” defined. 

Much like the law regarding meal and rest periods (which continues to be uncertain as the California Supreme Court delays in issuing its long-awaited decision whether such breaks must be “ensured” or need only be “made available”), it seems inevitable that the law regarding suitable seating is going to play out in the courts, and just as inevitable that class action after class action will be filed as the law remains vague and confusing.

And those class actions will not be small ones.  Under California’s Private Attorneys General Act, each employee could recover up to $100 for the initial pay period in which there is a violation, and up to $200 for each subsequent pay period. 

Employers would be wise to get ahead of the proverbial curve on this issue, reviewing the working conditions of their employees and making seats available where possible.