The California Supreme Court recently agreed to decide three significant issues relating to suitable seating requirements. These issues are of tremendous importance to California employers, and particularly those in the retail industry, who have faced an ever increasing number of lawsuits seeking to recover penalties under California’s Private Attorneys General Act of 2004 (PAGA) for allegedly failing to provide their employees with suitable seating.
Fourteen of California’s 17 Wage Orders contain the following language:
(A) All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.
(B) 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.1
Such laws were common throughout the United States in the 1950s, at which point almost all of them applied to female employees only. As more women entered the workforce, however, states determined that gender-specific seating laws were unnecessary and, following passage of the Civil Rights Act of 1964, unlawful. Accordingly, most states repealed their employee seating laws, and most of the few which retained them amended them to make them gender-neutral.
For many years, California’s suitable seating law failed to attract much attention. That changed, however, with the passage of PAGA, which courts interpreted to apply to suitable seating violations under the Wage Orders. Under PAGA, an employee can seek up to a year of civil penalties and attorney fees, including a civil penalty of $100 for each aggrieved employee per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequent violation. Particularly for large retailers doing business in California, the potential stakes can be quite high.
Despite the high level of potential exposure to employers, there is very little guidance as to how to interpret the suitable seating law. That should begin to change soon, however, since the Ninth Circuit Court of Appeals has certified three questions to the California Supreme Court (Case No. S215614) for guidance in the cases of Kilby v. CVS Pharmacy, Inc., Ninth Circuit Case No. 12-56130, and Henderson, et al v. JPMorgan Chase Bank N.A., Ninth Circuit Case No 13-56095. Specifically, the Ninth Circuit asked the California Supreme Court to clarify:
In determining whether the nature of the work reasonably permits the use of seats, does the phrase “nature of the work” refer to an individual task or duty that an employee performs during the workday, or should courts take a “holistic” approach and evaluate the entire range of an employee’s duties?
If the courts should construe the “nature of the work” requirement holistically, should they consider the entire range of an employee’s duties if more than half of the employee’s time is spent performing tasks that reasonably allow the use of a seat?
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?
Where an employer does not provide seating, does an employee have to prove what could qualify as a suitable seat to prove a violation of the law?
The answers to these questions will provide necessary guidance and will also significantly impact the outcome of numerous cases in pending litigation. For example, examining the nature of work on a “per task” or a “per duty” basis tends to favor employees, since it is likely that at least some of their work can reasonably be performed while seated. On the other hand, a holistic approach tends to favor employers since portions of the work which can reasonably be performed while seated may be disregarded if, overall (or for a significant portion of time), the work cannot reasonably be performed while seated. Similarly, considerations of business judgment will inherently favor employers, whereas any need to take the characteristics of individual employees into account will require a case by case analysis which may be expensive to implement. Finally, employers often argue that the layout of the business makes it impractical to provide seating. Accordingly, the extent to which the layout affects the employer’s duties, as well as the allocation of the burden of proof (and what kind of a seat is “suitable”) are each important issues.
1 Wage Orders 14 and 16 have narrower, industry specific, language, while Wage Order 17 does not include a suitable seating requirement.