Most of the California Wage Orders require an employer to prove “suitable seats when the nature of the work reasonably permits the use of seats.” While the “suitable seat” requirement has been in the Wage Orders for many years, litigation around the requirement has been minimal until the 2010 decision in Bright v. 99 Cents Only Stores. The Bright decision authorized suitable seating lawsuits under the California Private Attorney General’s Act (“PAGA”). Lawsuits brought under PAGA allow for penalties, but, more importantly, allow a successful plaintiff to recover attorneys’ fees and costs. Following the Bright decision, there has been a significant rise in suitable seating litigation, including two cases being litigated in federal court; one of which involves retail clerks and the other bank tellers. These two federal cases have led the Ninth Circuit Court of Appeals to ask the California Supreme Court to answer certain questions about what the California suitable seating requirement means and how it should be applied. Surprisingly, last month the California Supreme Court agreed to answer the Ninth Circuit’s questions.
The questions the California Supreme Court agreed to answer for the Ninth Circuit reveal the difficulty of the suitable seating requirement. In attempting to apply the suitable seating requirement, the Ninth Circuit asked:
(1) Does the phrase 'nature of the work' refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe 'nature of the work' holistically and evaluate the entire range of an employee's duties? (a) If the courts should construe 'nature of the work' holistically, should the courts consider the entire range of an employee's duties if more than half of an employee's time is spent performing tasks that reasonably allow the use of a seat? (2) When determining whether the nature of the work 'reasonably permits' the use of a seat, should courts consider any or all of the following: the employer's business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee? (3) If an employer has not provided any seat, does a plaintiff need to prove what would constitute 'suitable seats' to show the employer has violated Section 14(A)?
The California Supreme Court’s response to these questions, particularly the question of whether the “employer’s business judgment” as to whether the employee should stand while performing the work, will go far in determining whether the suitable seating requirement will continue to drive litigation and whether a broad range of industries and employers should be concerned about the threat of litigation. The lawyers representing employees are urging the Court to conclude that an employer must provide seats if the employee is engaged in a task that can be “objectively performed” while seated, without regard to the employer’s business judgment that the employee should stand and without regard to other tasks the employee may perform. Lawyers representing the employers argue that the Court must consider whether the entire range of tasks performed by the employee may be performed while seated, the physical layout of the workplace and the employer’s business judgment about whether the employee should sit or stand while preforming certain tasks.
The Court is unlikely to answer these questions quickly given the briefing schedule involved. In the meantime, if an employer has employees who are not provided seats during the workday, the employer should analyze the employees’ job duties and other relevant factors to determine the basis for the decision to have those employees perform work without being seated. Employers should consider whether they could successfully argue that the nature of the work does not reasonably permit sitting. In some instances, it may be preferable to provide seating rather than run the risk of a legal challenge.