A recent California Supreme Court decision has the potential to affect all California employees who are required to stand while performing parts of their job. In response to numerous lawsuits brought by cashiers, retail employees, bank tellers and other employees, the California Supreme Court clarified the meaning of a decades-old law that requires employers to provide their employees with “suitable seats” when the nature of the work permits it. The Court rejected the interpretation favored by employers—creating instead an interpretation that will make it more difficult for employers to deny their employees a seat.
As a result of this decision, California companies must give careful consideration to whether their employees can perform any of their tasks while sitting. Employers who fail to provide seats when the nature of the work would reasonably permit their use face significant penalties.
Suitable Seating Laws
Different variations of seating laws have been in place in California since 1911. The current language dates back to 1976, when the Industrial Welfare Commission modified a wage order to require that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” The wage order also requires that “when 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.”
The California Division of Labor Standards Enforcement (“DLSE”) is the agency authorized to enforce California’s labor laws. In the nearly forty years since the seating laws appeared in their current form, the DLSE has not enforced them in the context of public-facing commercial employees, such as cashiers, retail employees, or bank tellers.
PAGA and the Current Lawsuits
The dynamic changed in 2004 when the California legislature passed the Private Attorney General Act (“PAGA”). This law authorizes employees to bring private lawsuits to enforce labor laws previously enforced only by the DLSE. An employee who prevails on a PAGA action is entitled to keep 25 percent of the penalties recovered, plus attorneys’ fees (the remaining 75 percent goes to the government). For laws that do not provide their own penalty—such as the suitable seating law—PAGA sets a penalty of $100 per employee per pay period for the initial violation, and $200 for each subsequent violation. These penalties add up quickly and provide employees with a strong incentive to file lawsuits.
Incentivized by PAGA, employees have recently brought numerous lawsuits alleging that their employers have failed to provide them with seats. These suitable seating lawsuits have been brought against dozens of prominent companies, and more will undoubtedly follow.
Several of these cases are pending before the Ninth Circuit, which sought guidance on the meaning of the suitable seating law from the California Supreme Court. The Court agreed to provide guidance on three questions: (1) Does the phrase “nature of work” refer to discrete tasks or the entire range of an employee’s duties? (2) What factors should courts consider when determining whether the nature of work “reasonably permits” the use of a seat? (3) Does the employer or employee have the burden of proving whether or not a suitable seat is available?
The “Nature of the Work” Depends on the Tasks and Duties by Location
In interpreting the provision that employers must provide suitable seats “when the nature of the work reasonably permits the use of seats,” the California Supreme Court rejected the interpretations advocated by both employers and employees. The employers had argued for a “holistic” approach that considered all of the employee’s tasks throughout the day. Under this approach, if the weighing of all the tasks favored providing a seat, the job would be a “sitting” job, otherwise it would be a “standing” job. The court found this approach too broad. The employees, on the other hand, argued for a task-by-task evaluation that asked whether a single task could be performed seated. The court found this approach too narrow.
Instead, the Court adopted an approach that requires a look at “subsets of an employee’s total tasks and duties by location,” such as those performed at a cash register or a teller window, and then consider whether it is “feasible for an employee to perform each set of location-specific tasks while seated.” The court explained that an employee may be entitled to a seat to perform tasks at a particular location even if his job duties include other standing tasks, so long as “a seat would not interfere with performance of standing tasks.” This approach will require courts to consider all of the tasks done at a particular location and to look at “the relationship between the standing and sitting tasks done there, the frequency and duration of those tasks with respect to each other, and whether sitting, or the frequency of transition between sitting and standing, would unreasonably interfere with other standing tasks or the quality and effectiveness of overall job performance.”
Whether the Nature of the Work “Reasonably Permits” the Use of a Seat Depends on the “Totality of the Circumstances”
In deciding whether the nature of the work “reasonably permits” the use of a seat, the Court adopted a “totality of the circumstances” test for each location where seating may be sought. This test considers “all relevant factors,” including the “frequency and duration of tasks” and the “feasibility and practicability” of providing a seat.
The court provided further guidance on three specific factors that might be considered. First, the court addressed whether deference should be given to an employer’s business judgment that employees provide better customer service while standing. The Court recognized that providing a certain level of customer service is something employers may reasonably expect from their employees but clarified that customer service is an “objective job function comprised of different tasks,” such as assisting customers with purchases, answering questions, locating inventory, and creating a welcoming environment. In order to claim that an employee needs to stand for customer service reasons, the employer must be able to provide evidence that the specific tasks comprising that employee’s customer service duties are best accomplished standing. Employers cannot just rely on a “mere preference” that particular tasks be performed while standing.
The Court next addressed whether the physical layout of a workspace is a relevant factor. While explaining that the workspace can be considered in the totality of the circumstances test, the Court stated that “an employer may not unreasonably design a workspace to further a preference for standing or to deny a seat that might otherwise be reasonably suited for the contemplated tasks.” In addition, the Court noted that evidence that seats are used to perform similar tasks in similar conditions by other companies may be relevant in determining whether the physical layout may “reasonably be changed to accommodate a seat.”
Finally, the Court ruled that physical differences among employees is not a relevant factor. The law requires employers to provide a seat when the nature of the work reasonably permits it, not when the nature of the worker does.
The Employer Has the Burden of Showing Infeasibility
Under this decision, if the employer argues that providing a seat would be infeasible, the employer has to burden to prove it. Once it is shown that the nature of the work reasonably permits the use of seats, the employee is not required to find a particular type of seat that would work. Rather, an employer seeking to be excused from providing a seat bears the burden of showing that compliance is infeasible because no suitable seat exists.
The California Supreme Court has not yet decided how these general rules apply to any specific case. Other courts will now implement this decision and determine whether, and under what circumstances, employees must be provided with seats.
The court did rule, however, that the DLSE’s long inaction in enforcing the seating requirement for bank tellers and retail cashiers does not mean that seats are not required for those employees. In addition, the Court implied that “cash register duty may feasibly be performed while seated,” and that an employee working “at the cash register would be entitled to a seat there.” Whether lower courts agree with this dicta remains to be seen, but this decision will certainly make it more difficult for employers to deny their workers a seat.
Given the potential penalties for violating the suitable seating law, employers will need to carefully reconsider whether the tasks and duties performed by their employees can be performed while seated. This analysis should be done for each location where employees perform their tasks. If employers want their employees to stand for customer service reasons, employers must consider what evidence demonstrates that the specific customer service tasks the employees are performing are best accomplished standing.
Stoel Rives lawyers are available to assist in addressing any questions regarding the application of this decision to your specific circumstances. Please contact the Stoel Rives lawyer with whom you usually work or the authors of this article.