Do Your Employees STAND or SIT (or LEAN)?


EmpBlog-12.20.2012-securityguardsleepingCalifornia’s Wage Orders require that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats . . . .”  So naturally, someone found a way to sue an employer about this.

In Garvey v. Kmart, a one-week bench trial that concluded this week, cashiers brought a class action claiming that the company violated this requirement.  The judge ruled that Kmart had legitimate grounds for requiring its cashiers to stand—namely, ”to project a ready-to-assist attitude to customers waiting in line, all of whom are already standing.”  Standing also made cashiers more mobile and efficient.

HOWEVER, even though the judge rejected the plaintiff’s proposal that they be fully seated, the court wondered whether a different modification—something called a lean-stool—might be an acceptable alternative.  According to the court, “rigid lean-stools allow an individual to place most of their weight on a supported seat, while remaining in a more upright, leaning position.”

WHY DOES THIS MATTER?  Because even though the plaintiffs in this case lost, they never raised the issue of the lean stool possibility in the first place.  However, since the judge here did raise it, it is pretty likely that the next plaintiff will know to bring it up, and if you don’t offer it to your standing employees, be prepared to explain why you don’t!

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP.  It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked.  So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again.  This is commentary people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing.  No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits).  But feel free to contact us with your questions and comments—who knows, we might even answer you.  And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry).  Big news: Copyright 2012.  All rights reserved; yep, all of them.

If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq. (who else would you contact?), commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department, at (310) 281-6348 or

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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