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:
14. SEATS
(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.
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