California Supreme Court Hears Oral Argument in Suitable Seating Case

Jan 7 2016 - Workplace Policies - HRWatchdog

The California Supreme Court will decide when employees must be provided seats.

The California Supreme Court will decide when employees must be provided seats.

This week, the California Supreme Court heard oral argument on the question of when an employer is required to provide “suitable seats” to an employee.

Many employers, especially those in the retail industry, hope the Court will provide much needed guidance in this murky area.

The majority of California Wage Orders require “suitable seats when the nature of the work reasonably permits the use of seats.” But questions remain as to how to apply this requirement, and there have been numerous class-action lawsuits involving the question of providing seats for employees to do their work.

The questions before the Court arise out of two class-action suits filed in federal court. One of the cases, Kilby v. CVS Pharmacy, Inc., involves CVS cashiers who spend almost all of their time ringing up sales at the cash register. The other case, Henderson v. JPMorgan Chase Bank NA, involves bank tellers. Both of these job positions involve standing for long periods of time.

The Ninth Circuit asked the California Supreme Court to decide how it interprets California’s suitable seating requirement. The Ninth Circuit underscored the fact that the interpretation of the suitable seating requirement carries enormous consequences for California employers: if the interpretation ultimately imposes liability, it will directly impact countless employers and employees and “mean thousands of California’s employees would be entitled to seats.”

The potential cost to employers in terms of penalties, as the Ninth Circuit noted, can be in the “tens of millions of dollars (emphasis added).  The penalties rack up fast: under Labor Code sec. 2699(f)(2), the civil penalty is $100 for each aggrieved employee per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequent violation.

Given the important public policy interests, the California Supreme Court agreed to answer the following questions:

  • Does the phrase “nature of the work” refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe “nature of the work” holistically and evaluate the entire range of an employee’s duties?
    • If the courts should construe “nature of the work” holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?
  • When determining whether the nature of the work “reasonably permits” the use of a seat, should courts consider any or all of the following:
    • The employer’s business judgment as to whether the employee should stand;
    • The physical layout of the workplace; or
    • The physical characteristics of the employee.
  • If an employer has not provided any seats, does a plaintiff need to prove what would constitute “suitable seats” to show the employer has violated the wage order?

Oral argument occurred on January 5. According to California Supreme Court practices and procedures, the court will file its written opinion within 90 days of oral argument.

Stay tuned to HRWatchdog for updates on this important issue.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia members can find more information regarding work facilities in the HR Library. Not a member? See how HRCalifornia can help you.

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