California Supreme Court Issues Guidance on Employer-Provided Seating Requirements

The Ninth Circuit requested guidance from the California Supreme Court on suitable workplace seating requirements in response to two pending cases (Kilby v. CVS Pharmacy and Henderson v. JPMorgan Chase Bank).  The California Supreme Court recently provided an opinion on the Wage Order provision that states: “all working employees shall be provided with suitable seats when the nature of the work reasonable permits the use of seats.”

The questions asked by the Ninth Circuit, and the Supreme Court’s responses, are as follows:

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

Both; employers are required to look at the employee’s total tasks/job duties by location and judge whether an employee can feasibly complete that subset of tasks while seated.  An employee may be entitled to a seat to perform job duties at one location in the business, even if the employee has duties elsewhere that require standing, as long as being provided a seat does not interfere with performing the standing tasks. The Court specifically noted that even if the nature of the work requires standing, it does not relieve an employer of the obligation to provide seating, given that employees may be entitled to seating when they are not actively engaged in work tasks.

When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider?

Relevant factors may include the employer’s business judgment and the physical layout of the work space.  However, the Court stated that the ultimate test for whether seating should be provided must include all factors, not just one or the other.  For example, just because an employer believes a cashier should be standing in order to appear more attentive to customers does not in and of itself mean the work requires standing.  Likewise, physical layout of the business may shape the expectations of both employer and employees (although an employer cannot unreasonably design a workspace to deny a sitting area).  Lastly, physical differences among the employees themselves are not a deciding factor in providing seating.

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?

The Court held that the burden of proof is not on the plaintiff, given that Section 14(A) of the Wage Order provision clearly states that employees “shall be provided with suitable seats.” Therefore, an employer seeking exemption from the provision is required to show that it could not reasonably comply.