Question #275: Can We Take A Stand On Employees Sitting?

Question: Some of our retail company’s employees in California are demanding chairs to sit in while they work. Management thinks it appears unprofessional to have workers sitting, but I hear the employees might have a legal right to sit down. Should management take a stand?

Answer: By Jessica Linehan, Joel O’Malley, and Gabrielle Wirth

Jessica Linehan

Joel O’Malley

Gabrielle Wirth

This question focuses on the requirement in fourteen of the seventeen California Wage Orders that employees be “provided with suitable seats when the nature of the work reasonably permits the use of seats.” Earlier this week, the California Supreme Court provided some guidance on when seating is actually required.

To remind you, California employers must comply with the Wage Orders promulgated by the California Industrial Welfare Commission.  Wage Order No. 7 governs employment in the retail industry.  Section 14 of Wage Order No. 7 provides:

1. All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats; and
2. 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.

Seating requirements under the Wage Orders have been the subject of many lawsuits against retailers across California (and two prior posts on this blog – #222 and #174). Several California appellate courts ruled that the failure to provide suitable seating for employees who were performing tasks that would allow them to sit violated the Wage Orders and subjected the employer to substantial penalties. A rash of class actions followed. For example, in a case against the CVS retail chain by its cashiers, the cashiers sought damages because CVS did not provide seats while they performed that task. A similar case was filed against JP Morgan Chase Bank by its bank tellers. In both cases, the employers argued the employees had to stand to provide better customer service and perform their duties, and the courts ruled for the employers. On appeal by the employees, the Ninth Circuit consolidated the cases and certified to the California Supreme Court the following three questions:

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 consider the entire range of an employee’s duties during a given work shift?
2. When determining whether the nature of the work “reasonably permits” the use of a seat, should courts consider 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” in order to show that the employer has violated the seating provision?

The California Supreme Court has now provided answers to these questions.

The Court first concluded that the “nature of the work,” referred to an employee’s tasks performed at a given location, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere during a work shift. Courts are to “examine subsets of an employee’s total tasks and duties by location, such as those performed at a cash register or a teller window, and consider whether it is feasible for an employee to perform each set of location specific tasks while seated.” Further, courts should “consider the relationship between the standing and sitting tasks done” at a particular location, “the frequency and duration of those tasks with respect to each other, and whether sitting, or the frequency of transition between sitting and standing, would unreasonably interfere with other standing tasks or the quality and effectiveness of overall job performance.” In sum, if the employee’s tasks reasonably permit sitting, and provision of a seat would not interfere with performance of other tasks that may require standing, then the provision of a seat is required. But even if an employee’s tasks at a discrete location require standing, then suitable seats must be provided within “reasonable proximity” for an employee’s use while not actively engaged in work tasks.

The Court also held that whether the nature of the work “reasonably permits” seating is based on the totality of the circumstances focusing on the nature of the work, not the individual employee’s characteristics. An employee’s business judgment and the physical layout of the workplace are relevant, but are not necessarily the controlling factors. Courts are instructed to take into account the “employer’s reasonable expectations regarding customer service,” the “employer’s role in setting job duties,” and the “employer’s view that an objective job duty is best accomplished standing,” but not to give employers “unlimited ability to arbitrarily define certain tasks as ‘standing’ ones.” Accordingly, an employer’s belief that standing is better for customer service may be considered, but that belief alone does not mean the work does not reasonably permit sitting.

Finally, the Court held that, when challenged, the employer bears the burden of showing no suitable seat is available to the employee.

The ultimate takeaways from the Court’s ruling remain largely the same as before. In order to minimize the risk of becoming a defendant in one of these cases, or maximize the chance of defeating class certification in such a case, employers can take a number of actions.

• First, employers should assess the job duties of their various employee types and the suitability and availability of seating at the specific locations where employees perform duties for reasonable periods of time.  Employers should determine whether the nature of the work performed by employees “reasonably permits the use of seats.”  Job description revisions may be in order.
• Second, employers should categorize job duties into those involving the employee “actively working” versus other duties, and consider whether seating may be appropriate when “active working” is not occurring.  Whether seating may be appropriate will depend on an evaluation of when seating would interfere with employees’ other work tasks.
• Finally, employers should determine the feasibility of adding seats to employees’ direct work areas and/or to nearby break areas.  Part of an employer’s assessment may be to reflect on and document how standing by employees is or is not critical to the image the employer wants to portray to the public, which may continue to be a relevant factor.