Is Your Employer Required to Provide You With a Seat?

California employers require many employees to stand all day, despite the fact that they could provide seats if they wanted to.  This practice is common in the retail industry, among others.  But is it legal?

For certain employees, under certain circumstances, the answer is no.  Many of the California wage orders contain language requiring that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  They also provide 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.”

When an employer fails to meet either of these requirements, it may be subject to penalties under California’s Private Attorney General Act (“PAGA”).  Although the wage orders themselves do not provide for penalties for violating seating requirements, California Labor Code section 1198 prohibits employers from violating the wage orders.  PAGA permits employees to bring claims for civil penalties based upon violations of the Labor Code.  Therefore, employees can bring PAGA claims for failure to provide suitable seating in violation of the wage orders.

Recent years have seen a series of federal class actions  against large retail operations alleging that the employers unlawfully required their employees to stand while performing their job duties.  The Ninth Circuit certified questions arising from two of those cases, Kilby v. CVS Pharmacy, and Henderson v. JPMorgan Chase Bank, to the California Supreme Court.  On April 4, 2016, the Court issued its opinion in Kilby, resolving the following three questions:

First, the Court addressed whether the phrase “nature of the work” referred to particular tasks performed throughout the workday, or whether it referred to the entire gamut of job duties that an employee performs throughout the day.  This issue is significant, because many employees perform multiple job duties during the course of a workday.  For example, a cashier might also spent part of her time stocking supplies and interacting with customers in the store.  If employees are required to show that all of their job duties permitted seats, then very few employees will be able to meet that test.

The Court held that the phrase “nature of the work” refers to tasks performed at a particular location, for which the employee claims he has the right to a seat.  As a result, employers may be required to provide seats to cashiers while they are performing cashier duties, even if they spend part of their day performing tasks for which no seat is required.

Second, the Court addressed the question of what factors to consider when determining whether the nature of the work reasonable permits the use of a seat.  And, in particular, how much weight should courts give to factors such as business judgment, the physical layout of the workplace, and an individual employee’s circumstances?  These issues are also significant because, for example, if courts are required to defer to the business judgment of the employer, then it would be virtually impossible for employees to win these cases.  Similarly, if individual circumstances govern, then employees would have a very hard time bringing their claims on any type of class basis.

The Court held that the question is to be resolved objectively, under the totality of the circumstances.  The employer’s business judgment and the layout of the workplace are relevant, but not dispositive.  Furthermore, The correct inquiry is as to the nature of the work, not the characteristics of an individual employee.

Third, the Court addressed whether an employee must prove that a suitable seat is available in order to show that the employer has violated the wage order.  The Court held that where an employer argues that no suitable seat is available, the employer bears the burden of proving it.

Kilby thus clarifies the law as it applies to seating cases.  On the whole, the decision is very favorable to California employees.  If you have questions about the seating at your workplace, or about your other rights in the workplace, please feel free to contact Hunter Pyle Law for a free consultation.