Wednesday, April 6, 2016

California Supreme Court Clarifies that Most Employers Must Provide Employees with Seats for Tasks that May Reasonably Performed While Sitting

On Monday, the California Supreme Court provided much-needed guidance on a little-known state regulation that requires employers to provide employees with “suitable seats” when reasonable. The Supreme Court’s opinion in Kilby v. CVS Pharmacy, Inc. clarified that whether an employer must provide a seat depends on the individual tasks the employee regularly performs and whether any of those tasks may reasonably be performed while sitting, not whether the majority of tasks performed by the employee could be performed seated. It further clarified that employees who regularly work standing must be provided with a seat during breaks.

Despite the standing-desk trend amongst office workers, for workers who spend most of their shifts on their feet, sitting down for part of the workday reduces fatigue and promotes overall health. The Supreme Court’s interpretation of the seating requirement thus forces employers to evaluate the physical conditions of their employees’ workspaces through the lens of safety and health.

The U.S. Court of Appeals for the Ninth Circuit had requested guidance from the California Supreme Court to resolve two cases which implicated the seating requirement: one involving cashiers at CVS Pharmacy and another involving tellers at JPMorgan Chase Bank. The requirement is contained within the Industrial Welfare Commission’s wage orders, which regulate wages, hours, and working conditions for various job categories. (It impacts most workers in California, with the exception of those regulated by wage orders covering agricultural, construction, drilling, logging, and mining jobs, which have different seating rules.)

The California Supreme Court first traced the history of the seating provision, which dates to a 1911 law requiring that female employees in the mercantile industry be allowed to sit during breaks. A few years later, the Industrial Welfare Commission incorporated seating requirements for women and children into the various wage orders, including a requirement that garment and laundering workers be permitted to work while sitting. Seating requirements evolved over the following decades, and became applicable to employees regardless of gender in the early 1970s. In its current form, the relevant seating provision states:

(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.

In interpreting the seating requirement, the Court rejected the employers’ position that “the  nature of the work” language calls for a review of all tasks performed by an employee throughout the day to categorize work into “sitting jobs” and “standing jobs.” The Court explained: “There is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while seated, merely because his job duties include other tasks that must be done standing.” However, the Court also rejected the employees’ argument that if a single job task could be performed sitting, a seat must be provided.

The Court was instead persuaded by guidance from the Division of Labor Standards Enforcement which cautioned that the all-or-nothing approach obscures what tasks a worker actually performs (and their duration) and ignores the central purpose of the wage orders to provide a minimum level of protection for workers. But the Court also noted that, contrary to the argument advanced by the employees, the reasonableness standard in the provision means that a seat likely need not be provided where seated tasks comprise very little of the workday.

The Court’s standard thus requires an examination of all relevant factors and a balancing of the employee’s need for a seat against the impact on the employer’s business. Relevant considerations would include whether tasks in a given location could be performed sitting, whether sitting would significantly interfere with other standing tasks, and the impact on overall job performance. The Court further explained that the inquiry is an objective one and an employer’s mere preference for standing work is irrelevant.

Finally, the Court explained that sections 14(A) and 14(B) are not mutually exclusive and that both may apply to the same employee during different parts of the workday. For instance, an employee who performs both seated and standing work may be entitled to a seat during breaks in addition to while performing seated tasks.

The Supreme Court’s guidance is significant because employees who suffer violations of the seating requirement may be able to file an action under the Private Attorneys General Act of 2004 (PAGA). PAGA provides a cause of action for workers to enforce Labor Code violations in court on behalf of themselves and other aggrieved employees. In the context of the seating requirement, employers who fail to provide seats when it is reasonable to do so could be on the hook for penalties starting at $100 for each aggrieved employee per pay period. See Home Depot U.S.A., Inc. v. Superior Court (2010) 191 Cal.App.4th 210, 218; see also Cal. Labor Code § 2699(f)(2). Given that risk, many employers will likely find it more cost-effective to simply buy more chairs.

If you believe that your employer has unreasonably denied you access to seating while performing work or during breaks, please contact Bryan Schwartz Law.