Suitable Seating Class Action Cases Are On The Rise In California

Green v. Bank of America, No. 11-56365 (February 11, 2013) unpublished: The Ninth Circuit Court of Appeals recently held that employees need not make a request for “suitable seating” before filing a lawsuit against their employers under California’s Private Attorney General Act of 2004 (PAGA) for failing to provide such seating.

Section 14 of the Industrial Welfare Commission Wage Order 7-2001 for the mercantile industry states that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Although this wage order has rarely been used, since 2009 there has been a surge of “suitable seating” cases against companies, including banks, pharmacies, retailers, and grocery stores. Because “suitable seating” is a compliance issue, the lawsuits seek civil penalties and do not have to prove—or even claim—damages or injury.

In Green, the Ninth Circuit reversed a lower court decision that dismissed the case on the basis that the employee never requested a seat. The court noted that the wage order does not require that employees "request seating before it is offered." 

So far, only threshold issues have been decided, e.g., whether the claim can be brought under the state PAGA, and now, whether the employee has to first request the seating. It is now up to the courts to determine what type of work reasonably permits seating.

Note: This article was published in the April 29, 2013 issue of the California eAuthority.

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.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:


Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

JD Supra Readers' Choice 2016 Awards
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.