In recent years, there has been a rise in lawsuits by employees against grocery stores, clothing retailers, banks and other customer-driven businesses, involving an obscure provision hidden deep within California’s Industrial Welfare Commission Wage Orders. The provision addresses “suitable seating” at work and provides, in part, that all employees “shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”
In the late 1980s, the Labor Commissioner concluded this provision was “originally established to cover situations where the work is usually performed in a sitting position with machinery, tools or other equipment” and “was not intended to cover those positions where the duties require employees to be on their feet, such as salespersons in the mercantile industry.” Thus, for many years, employees generally did not seek to enforce it vis-à-vis employers in the grocery, retail, banking and other industries typically associated with “standing” jobs.
That was then. Fast-forward to today. Following the California Supreme Court’s decision in Brinker v. Superior Court, the likelihood of employees succeeding in a class action meal and rest period case has been called into question. As a result, the plaintiffs’ bar began strategizing to create new class action opportunities. The Wage Orders’ “suitable seating” provision provided that opportunity.
This all started in 2010, when a California court held in Bright v. 99 Cents Only Stores that employees could prosecute “suitable seating” claims in representative actions using the California Private Attorneys General Act (“PAGA”). Under PAGA, employees may seek civil penalties not only for violations they personally suffered but also for violations of other current and former employees. Thereafter, a northern California federal court issued rulings in two separate “suitable seating” cases: Garvey v. Kmart and Green v. Bank of America.
Garvey v. Kmart involved a group of cashiers who alleged Kmart did not provide suitable seating for employees who worked at the cash registers. Following a one-week bench trial, the court concluded Kmart had legitimate grounds for requiring its cashiers to stand based on the need to project a “ready-to-assist attitude to customers waiting in line.” The ruling was not entirely favorable to employers, however. The Court criticized Kmart’s suggestion that it had a “secret” policy of providing seating to anyone who requested it. Further, the Court suggested that alternative seating options such as “lean-stools” (where employees “place most of their weight on a supported seat, while remaining in a more upright, leaning position”) might be required even where an employer has a legitimate reason for not providing traditional seats.
In Green v. Bank of America, the trial court initially dismissed a class action lawsuit based upon the Labor Commissioner’s earlier assertion that employers need only give seats to employees who request them. In Green, there was no allegation in the complaint that any employee requested a seat, so the case was dismissed.
However, last month, the Ninth Circuit Court of Appeals reversed the trial court’s ruling. In doing so, the appellate court explained that the trial court read into the Wage Orders something that was not there – a requirement that employees must affirmatively request seats. Because there was no such requirement in the language of the “suitable seating” Wage Order provision, it concluded, employees are not required to plead or prove a request was made prior to filing a lawsuit. Significantly, the appellate court expressly declined to comment on whether the nature of the work involved in the case reasonably permitted seats in the case at issue or whether seating provided was “suitable.” Those issues were remanded to the trial court to be resolved following development of the facts.
What does this mean for employers? Only time will tell. These cases are new and the law is still evolving as it works its way through the courts. To reduce potential liability, employers should examine the jobs performed by their employees to determine whether the “nature of the work reasonably permits the use of seats.” If it does, employers should analyze whether seats can be safely provided and whether employees want them. One thing is now more clear, though – employers cannot rely upon employees to request seats in order to avoid liability. As with other employment laws in California, employers have an affirmative duty to conduct this analysis and, if appropriate, provide suitable seating for all employees.
Please note that the information contained in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.