On July 28, 2015, we prepared a blog post about the California Supreme Court’s request for guidance from the Labor Commissioner regarding the requirement that California employers provide “suitable seats” to employees “when the nature of the work reasonably permits the use of seats.” This is an important issue because violations of wage order requirements to provide suitable seating will subject employers to costly penalties under the Private Attorneys General Act (PAGA) in a representative action similar to a class action on behalf of all “aggrieved employees.” PAGA penalties are typically not covered by any insurance.

The question arose out of two cases in federal court—at the Ninth Circuit Court of Appeals—in which employees of CVS Pharmacy and JPMorgan Chase Bank alleged their employers violated Industrial Welfare Commission Wage Orders by failing to provide suitable seating. Noting a lack of meaningful guidance and precedent on the suitable seating requirement, and the importance of the question to California employers and employees, the Ninth Circuit referred the matter to the California Supreme Court and committed to follow its ruling.

The California Supreme Court then referred the question to California’s Division of Labor Standards Enforcement (“DLSE”), asking specifically for the DLSE’s interpretation of the terms “suitable seats,” “nature of the work,” and “reasonably permits.”

Last week, the DLSE responded to the California Supreme Court’s request. Most significantly, the DLSE opined that the “nature of an employee’s work” should be determined by looking at the particular tasks an employee is required to do, rather than considering the employee’s job as a whole. An employee may perform some tasks that reasonably permit the use of seats, and other tasks that do not. The DLSE’s guidance strongly suggests that an employer may not simply conclude that an employee’s “job” does not lend itself to sitting when considered holistically. Rather, an employer must examine each task an employee performs throughout the day, and provide seats for any task that reasonably permits their use.

The DLSE was less specific, however, regarding the meaning of “suitable seats” and “reasonably permits.” In considering these terms, the DLSE stated: “The language, history, and policy of the seating requirement do not support an across-the-board rule.” Rather, to determine whether the nature of an employee’s work “reasonably permits” the use of seats, employers should consider a variety of factors, including the physical layout of the workplace. In brief, “[t]he seating requirements should be applied in focused fashion, using an objective, common sense test.”

What This Means for Employers

As we mentioned in our July 28, 2015 blog post, the California Supreme Court’s opinion regarding the proper interpretation of the suitable seating requirement is likely to apply to employees in all industries in California. While the California Supreme Court has yet to render that opinion, it is highly likely that it will accept and follow the DLSE’s guidance. Therefore, the exact requirements for suitable seats are still unknown, but the picture is beginning to come into better focus.

First, as before, employers should provide basic seating to employees who are involved in clerical-type work, where they are working from a desk, or work that requires them to remain in a fixed location for a significant period of time (i.e., work at a machine) especially where doing so would not pose a legitimate safety risk (e.g., “trip hazard”) or OSHA violation. Furthermore, it is important to keep in mind that the DLSE’s test is whether the nature of the particular task being performed reasonably permits the use of a seat. As such, employers should assess each of the various tasks an employee performs throughout the workday and workweek to determine whether the employee is entitled to suitable seating during the performance of some or all of those tasks.

Even where employers are not required to provide individual seats, there is still a requirement under most Wage Orders to provide an adequate number of seats in reasonable proximity to the work area. Therefore, employers should also review their policies and practices to ensure that they comply with these more generalized seating requirements.

Lastly, the DLSE’s guidance suggests that where the physical layout of the workplace would make employee seating unsafe in certain areas (e.g., trip hazard), seating is not required. However, it is still recommended that if the employer is concerned about safety should seating be provided at a particular work station, the employer should have the situation evaluated by a qualified safety consultant before dismissing the option of providing seating.

What’s Next?

We will continue to follow these cases and update our blog with any new developments. For more information on which Wage Order applies to your business, click here for a pamphlet from the California Division of Labor Standards Enforcement.