California Employers in the Hot Seat: California Supreme Court Seeks Labor Commissioner Input on “Suitable Seating” Requirement for Workers

By XobeeAdmin on July 28, 2015 in Legal Update
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On July 22, 2015, the California Supreme Court asked the California Labor Commissioner’s Office for guidance on how to interpret the sections of the Industrial Welfare Commission Orders (“Wage Orders”) requiring employers to provide all working employees with suitable seats when the nature of the work reasonably permits the use of seats.  The Court requested that the Labor Commissioner provide guidance on how to interpret the phrases, “suitable seats,” “nature of the work,” and “reasonably permits.”

The reason employers need to know the meaning of these phrases is because of the substantial penalties that can result from failing to comply. The Private Attorney Generals Act of 2004 (“PAGA”) allows employees to sue their employers on behalf of themselves and other aggrieved employees for violations of labor laws.  A prevailing employee in a PAGA action can recover civil penalties for an employer’s failure to provide suitable seating in the amount of $100 for each aggrieved employee per pay period for the initial violation, and $200 for each employee per pay period for subsequent violations. These penalties are in addition to statutory penalties brought by the employee based on the same violations.

Uncertainty in the Law

The primary question before the Court is whether “nature of the work” refers to individual duties and tasks that an employee performs throughout the day, or if it is a holistic phrase relating to the entire range of an employee’s duties. The second major question is whether, in determining if the “nature of the work reasonably permits the use of seats,” courts should consider the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, and the physical characteristics of the employee.

There is currently significant uncertainty surrounding these inquiries.  In fact, the California Supreme Court isn’t the first to punt on this issue—these questions first arose during two separate cases that were on appeal in the Ninth Circuit Court of Appeals in the federal court system. However, the Ninth Circuit was unable to provide answers and requested that the California Supreme Court provide its opinion. The California Supreme Court, in turn, formally requested that the California Labor Commissioner provide input on these issues. Therefore, the California Supreme Court’s ruling will be groundbreaking in regards to this requirement.

Takeaway for Employers

The questions currently before the Court pertain to Wage Orders 4 for Professional and Technical occupations, and 7 for Mercantile Industry occupations. However, the suitable seating requirement is present in one form or another in Wage Orders 1-16, excluding only Wage Order 17 for miscellaneous employees to which no industry has yet been assigned. The Court’s decision on the suitable seating requirement will likely be binding on employers operating under Wage Orders 1-16. Suitable seats must be provided in nearly all industries and professions. Many employers are not aware of this requirement, and such unawareness can be costly depending upon the decision ultimately issued by the California Supreme Court. Worse, many industries have traditionally required employees to stand when performing work duties and have given no meaningful consideration as to whether or not some form of seating can be safely provided. That is likely to change and prudent employers will stay ahead of the curve and immediately evaluate their options for seating in the workplace.

While the exact requirements for suitable seats are unknown, employers can limit potential liability by providing basic seating to employees who are involved in clerical-type work where employees are working from a desk or work that requires them to remain in a fixed location for a large portion of their work (i.e. work at a machine). The test is whether the nature of the work reasonably permits the use of a seat, so employers should assess the job requirements in determining whether the employee is entitled to suitable seating. Even where employers are not required to provide individual seats, under most wage orders, there is still a requirement to provide an adequate number of seats in a reasonable proximity to the work area. Employers should also review their policies to ensure that they comply with these seating requirements.

It is recommended that if the employer is concerned about safety should seating be provided at a particular work station (e.g., trip hazard), the employer should have the situation evaluated by a qualified safety consultant before dismissing the option of providing seating.

What’s Next?

We will be following these questions before the California Supreme Court and will 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 Department of Labor Standards Enforcement.