A previously ignored provision in the California Wage Orders provides that “[a]ll working employees shall be provided with suitable seats when the nature of their work reasonably permits the use of seats.” The language appears in the Wage Order that applies to retail employees but identical language also appears in the Wage Orders for other industries. This “suitable seating” language has gained traction over the last several years as a basis for class action claims against employers. To date, only a few courts have actually interpreted the “seating” language in the Wage Orders and the scope of its applicability remains to be seen. Like all Wage Orders, it is important to understand whether the requirement has any applicability to your workplace.
The momentum for suitable seating cases began in 2010 when a California court held that employees could pursue “suitable seating” cases using the California Private Attorneys General Act (“PAGA”). Using PAGA, an aggrieved employee can seek civil penalties for an employer’s failure to provide them with a “suitable seat” and also civil penalties for the failure to provide “suitable seating” for similarly situated current and former employees. The ability to pursue claims as a class has of course attracted the attention of class action counsel and a series of class action lawsuits have been filed over the last few years, mostly against retail employers. Potential penalties for violations are $100 per employee per pay period for the first violation and $200 per employee per pay period for subsequent violations. These numbers quickly add up if a significant class of employees is identified and PAGA also provides for the recovery of attorneys’ fees by successful plaintiffs’ counsel.
To date, plaintiffs’ class action counsel has focused on the retail industry as the primary target for suitable seating cases. Cashiers provide an obvious class of employees, who by industry practice typically stand, but around whom arguments for seating may be crafted. At least one case (against Kmart) that went to trial at the end of last year resulted in a victory for the employer when the court ruled that Kmart had legitimate business reasons for requiring its cashiers to stand, based on Kmart’s desire to provide a “ready to assist attitude” to customers. However, just last month, the Ninth Circuit Court of Appeals reversed a trial court ruling in a case against Bank of America and opined that the Wage Order language does not require the employee to have requested a seat from the employer before filing suit. Obviously, the absence of any requirement that the employee or class of employees have requested seating from the employer raises serious concerns for employers.
What do these cases mean for your workplace? If your workforce contains an employee or group of employees who regularly stand while performing work, you should examine whether the nature of their work reasonably permits the use of seats and, if it does, offer seating. The recent decision by the Ninth Circuit makes plain that employers cannot wait to evaluate the obligation to provide suitable seating until after an employee request has been made. If you have any questions regarding the suitable seating requirement, or any other issue relating to employment law, please contact one of our attorneys:
Daniel F. Pyne III
Richard M. Noack
Ernest M. Malaspina
Erik P. Khoobyarian