Clarification of California’s Obscure “Suitable Seating” Wage Rule Likely to Lead to More Employers Providing Seats – and to More Class Actions Against Those Who Don’t

We have written previously about California’s obscure wage rule pertaining to “suitable seating,” which requires that some employers provide some employees with “suitable seating” in some circumstances if the “nature of the work reasonably permits it” – and exposes employers to significant penalties if they do not do so.

Faced with a dearth of guidance on the obscure rule and with a wave of class actions following the discovery of the rule by the plaintiffs’ bar, the Ninth Circuit Court of Appeals threw up its hands last year and asked the California Supreme Court to answer a few questions relating to the law.

In a decision issued on April 4, 2016 in Kirby v. CVS Pharmacy, Inc., the California Supreme Court did so.

And the California Supreme Court’s answers to the questions posed to it seem certain to lead to at least two results.

First, many employers will need to reassess their practices and determine whether it is reasonable to provide seats to employees.  This will be a particularly important assessment for employers in the hospitality and retail industries, where employers often expect employees to stand while working in order to show customers that they are attentive and available.

Second, the California Supreme Court’s clarification is certain to lead to a rise in the filing of class actions alleging that employers have unlawfully refused to provide suitable seating.

The questions that were posed to the California Supreme Court, and a summary of the Court’s answers, are as follows:

Question 1: Does the phrase “nature of the work” refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given day or shift?

Answer: The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.

Question 2:  When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?

Answer: Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics.

Question 3: If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?

Answer: The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.

The Court explained, “There is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while seated, merely because his job duties include other tasks that must be done standing.”

The California Supreme Court’s opinion should help employers assess whether and when to make seating available to employees.  And employers should review their practices promptly to try to comply with the law.  Now that the California Supreme Court has provided some much needed guidance on the issue, employers can expect that their practices will be challenged, and those challenges will often come in the context of class action lawsuits.