In recent years, California employers have been hit with class action lawsuits alleging that their employees were not provided with “suitable seating,” even when seating would only be appropriate for some of the tasks employees perform.

Two examples from the past month alone illustrate the trend. On October 24, 2018, a California judge approved a $2.6 million class action settlement deal as “fair, adequate, and reasonable,” resolving a nearly-three-year lawsuit in which 26,747 cashiers and store workers alleged that Home Depot failed to provide suitable seating. That same day, a California federal judge refused to approve a $65 million deal to end a class action suit against Walmart for failing to give seats to cashiers. The judge stated that the deal appeared to give Walmart an option of removing the seating after only two years, rather than providing a permanent seating option as required by law. The deal is likely to be reworked and is expected ultimately to be approved by the judge in that case.

Prior SHLC Blogs on this topic were posted in April 2016, October 2015, and July 2015.

California Standard for Employee Seating

The Wage Orders of the California Industrial Welfare Commission generally require employers to provide suitable seating where the nature of the work reasonably permits the use of seats, even if only some of the employees’ tasks may be performed while seated. To determine which Wage Order(s) apply to your business, visit the IWC’s website.

The California Supreme Court has held that the “nature of the work” is a task-specific standard, meaning that employees are entitled to seats even if their job duties require them to sometimes move throughout the day. The Court also held that “[w]hether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances” and may include the employer’s business judgment and the physical layout of the workplace, but not the characteristics of the individual employee. The Court emphasized that the nature of the work must reasonably permit the use of a seat. This determination will take into account tasks actually performed at a particular location and “consider the relationship between the standing and sitting tasks done there, 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.”

Advice to Employers

Seats should be provided if a particular task can be performed while seated and without creating a safety hazard, even if most tasks employees performed cannot be performed while seated. Employers must also provide seats “in reasonable proximity” to the work area for employees to use during lulls in operation. (Wage Orders 1-13, 15, Section 14(B)) If seating is denied based on safety concerns (i.e., a trip hazard), it is recommended that employers have a qualified safety consultant provide a written opinion as to the safety issue created.

Suitable seating laws, along with other important legal developments, will be discussed in more detail during SHLC’s December 4, 2018, webinar entitled “2019 Legal Update for California Employers: What You Need To Do Now.” To register, call any SHLC office, or register online at https://suttonhague.com/events.