By Michael Kun
Several years ago, employees in California began filing class action lawsuits against their employers alleging violations of the “suitable seating” provision buried in the state’s Wage Orders. The unique provision requires some employers to provide “suitable seating” to some employees when the “nature of their work” would “reasonably permit it.”
The use of multiple sets of quotation marks in the previous sentence should give readers a good idea just how little guidance employers have about the obscure law.
The California Supreme Court is now poised to explain what that obscure law means for those employers who do business in California. And the Court’s ruling could mean that restaurants in California will have to provide seats to hosts, hostesses and line cooks, or that hotels and other institutions will have to provide seats to their front desk staffs.
A little history: The “suitable seating” provision was written to cover employees who normally worked in a seated position with equipment, machinery or other tools. For decades, it had been the subject of little litigation and even less discussion. But after a court of appeal decision brought the obscure law to the attention of plaintiffs’ lawyers in California, employers in a wide variety of industries have been hit with class actions alleging that they have not provided seats to their employees. Like many class actions, those cases have typically been brought by a single plaintiff who was well aware that the employer expected him or her to be standing while performing the job at the time he or she applied for a job. Just as typically, those employees have not even requested a seat before filing suit and seek recovery of millions of dollars.
To date, the parties and courts dealing with these lawsuits have done so largely in the dark. Simply put, there is little case law or legislative history explaining what the provision’s various terms mean or how they are to be applied or analyze. Which employees are covered by the law? What is a “suitable seat”? What does the “nature of their work” mean? What does “reasonably permit” mean? What should be considered? What should not be considered?
Earlier this year, the Ninth Circuit Court of Appeals threw up its hands and asked the California Supreme Court to clarify the law. It asked the California Supreme Court whether the term “nature of the work” refers to individual tasks that an employee performs during the day, or whether it should be read “holistically” to cover a full range of duties. It also asked the California Supreme Court to clarify whether an employer's business judgment should be considered in determining whether the nature of the work “reasonably permits” the use of a seat, as well as the physical layout of the workplace and the employee’s physical characteristics. Finally, it asked the California Supreme Court to clarify whether the employee must prove what would constitute a “suitable seat” to prevail.
After some speculation that the California Supreme Court might decline to answer these questions, it agreed to do so. While the process will take time, employers in California should finally have much-needed guidance on this obscure law, allowing them to alter their practices as necessary and avoid these class actions.
Depending on what the California Supreme Court says, its opinion could have a great impact upon the hospitality industry.
A few examples:
Hosts and hostesses at restaurants and clubs often stand behind a desk or podium when greeting customers. Such employees (or their lawyers) might argue that they could perform their jobs just as effectively from a high stool or a half-seat.
What about line cooks? The thought of line cooks working while seated is an unusual one. But, again, such employees (or their lawyers) might argue that they could do their jobs while seated. Can an employer consider the layout of the kitchen? Can it consider whether seats would block the often-tight passageways in the kitchen? Can it consider the safety and health implications? How about whether placing seats in the kitchen would violate local fire ordinances?
Like hosts and hostesses in restaurants, the staffs at the reception desks at hotels, spas and other institutions typically are standing while greeting and assisting customers. Could they do their jobs while seated on a high stool or a half-seat? Can a hotel take the position that the physical layout of the reception area would not allow chairs at the reception desk?
While the California Supreme Court’s decision is unlikely to address any of these hospitality-based questions specifically – the cases before it do not involve the hospitality industry – hospitality employers will need to review the decision carefully to determine whether the Court’s opinion suggests that some of its employees must be provided with seats.