By: Michael S. Kun, as appeared on the Wage & Hour Defense blog
Employers with operations in California have become aware in recent years of an obscure provision in California Wage Orders that requires “suitable seating” for some employees. Not surprisingly, many became aware of this provision through the great many class action lawsuits filed by plaintiffs’ counsel who also just discovered the provision. The law on this issue is scant. However, at least two pending cases should clarify whether and when employers must provide seats – a case against Bank of America that is currently before the Ninth Circuit Court of Appeal, and a case against K-Mart that is now being tried in the United States District Court for the Northern District of California.
The wave of representative and class action lawsuits alleging that employers failed to provide suitable seating in violation of Labor Code § 1198 and Wage Orders was triggered by the Court of Appeal ruling in Bright-v-99Cents-Only, 189 Cal.App.4th 1472 (2010), permitting “suitable seating” claims to proceed under California Private Attorney General Act (“PAGA”). Prior to that ruling, “suitable seating” lawsuits were few and far between. All it took was a single published opinion to let the plaintiffs’ bar know about this potential claim and to begin to seek plaintiffs to bring these claims against their employers.
Importantly, the seating provisions of the Wage Orders do not require all employers to provide seating to all employees. Instead, the provisions state that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”
As the former Chief Deputy Labor Commissioner explained in 1986, these seating provisions were “originally established to cover situations where the work is usually performed in a sitting position with machinery, tools or other equipment. It was not intended to cover those positions where the duties require employees to be on their feet, such as salespersons in the mercantile industry.”
In Green v. Bank of America, the district court relied upon this opinion in dismissing a putative “suitable seating” class action with prejudice, holding that an employer need only give seats to individuals who request them – and there was no allegation in the complaint that any employee had requested a seat. That decision is now on review before the Ninth Circuit, which presumably will determine what “provide” means in the context of the “suitable seating” requirements. The Court may well look to the California Supreme Court’s Brinker v. Superior Court decision for guidance on that issue. There, in the context of requirements that employers “provide” meal and rest periods to employees, the California Supreme Court determined that “provide” means that the employer make the meal and rest periods available, but need not ensure they are taken. That would suggest that, in the “suitable seating” context, an employer must make seats available to appropriate employees, but need not ensure they take them. That, of course, would beg the question of who is entitled to seats in the first place.
The “suitable seating” trial relating to K-Mart’s cashiers that has commenced in San Francisco – Garvey v. Kmart — promises to look at that and other issues. Among other things, that trial should address the impact employers’ expectations and preferences have upon whether “the nature of the work reasonably permits the use of seats.”
Plaintiffs in “suitable seating” cases normally argue that a seat must be provided if the job “could” be done seated. Of course, that is not what the Wage Orders state. Many jobs “could” be done while seated. Whether they can be done as well while seated is a different issue entirely. (One is reminded of the famous Seinfeld episode where George Costanza insisted on getting a rocking chair for a jewelry store security guard; the guard then fell asleep as the store was robbed right in front of him.)
Among other things, employers in the hospitality and retail industries often wish to have persons in some positions standing in order to make eye contact with customers, establish a relationship with them and be in the best position to assist them. It is too easy for customers to ignore someone who is seated, or not even notice that person. The Kmart trial should provide some guidance as to whether such expectations and preferences are to be given weight.
These two cases should provide some much needed clarity as to whether and when seats must be provided to certain employees. In the meantime, employers would be wise to let employees know whether and why certain jobs are expected to be performed while standing.