California Supreme Court Addresses Suitable Seating

April 5, 2016

In an opinion filed on Monday, the California Supreme Court answered several questions regarding an employer’s duty to provide “suitable seating” for employees under applicable California Wage Orders.  Specifically, the Wage Orders at issue state that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  After reviewing the history and policy underlying the Wage Orders, the Court formulated a location-based approach for analyzing whether given job duties require an employer to provide suitable seating.

Given the recent increase in the number of lawsuits seeking penalties for failure to provide suitable seating, the Kilby v. CVS Pharmacy Inc. opinion deserves close attention from employers, particularly those in the retail and banking industries.  Under the opinion’s new approach, the first step in determining whether seating is required is to identify the actual tasks performed by an employee at a given location in the workplace.  The next step is to determine whether the tasks can be performed while seated or require standing.  Finally, after determining that the job can be performed while seated, the employer may still balance considerations of feasibility.

While the idea of determining whether certain tasks “reasonably permit” seating seems like an abstract and vague concept, the Court provides guidance for this “totality of the circumstances” assessment.  Labeling it an analysis of “feasibility,” the Court identifies the following relevant considerations: whether providing a seat would unduly interfere with other standing tasks; whether the frequency of transition from sitting to standing may interfere with the work; or whether seated work would impact the quality and effectiveness of overall job performance.

The Court also acknowledges the relevance of factors such as business judgment and the physical layout of the workspace in determining whether a seat is required, but not without caution.  While an employer’s reasonable expectations regarding job duties, such as customer service, deserve consideration, an employer’s mere preference that a particular task be performed while standing does not.  Further, while the physical layout of the workspace may be relevant in providing context for an employer’s expectations of job duties, an employer cannot unreasonably design a workspace to further a preference for standing.
It is important to keep in mind that even when an employer determines that certain job duties require an employee to stand, an employer is still required to place suitable seating in reasonable proximity to the work area for employees to use during “lulls in operation.”

In summary, seating is important, regardless of whether your employees perform standing or seated job duties.  In determining whether a seat is required, focus on the tasks performed within specific locations at the worksite.  Even if some of the tasks require standing, the employee may nevertheless be entitled to a seat to perform other tasks at the same location.  Consider how the seat may interfere with other tasks, and whether the seat would impact the quality of job performance and your reasonable expectations of job duties as an employer.  Finally, remember that this analysis takes into account the totality of the circumstances to determine whether providing a seat is feasible for the employer.