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IMG_1278Making employees stand all day can have harmful health consequences, but many employers continue to refuse to allow employees to sit down to perform any of their duties. The California Supreme Court has recently issued a decision interpreting state regulations concerning a requirement that employers provide employees suitable seats when the nature of the work reasonably permits use of seats. This decision is a victory for the rights of employees to have decent working conditions, as will be explained below

The regulations in question are contained in Industrial Welfare Commission (“IWC”) Wage Orders, seen posted on the walls of many workplaces, which regulate the wages, hours, and working conditions of most California employees. There are 17 such Wage Orders. Section 14(A) of each of the Wage Orders provides:

All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.

Although the requirement of seating is not new, enactment of the Private Attorney General Act of 2004, Labor Code section 2698 et seq., (“PAGA”), enabled private litigants for the first time to enforce the law. They can do this through representative actions (and class actions), with the plaintiff/employee standing in the shoes of the State of California to enforce the law.

The first major employee victory in this area came in 2010 in Bright v. 99 Cents Only Stores 189 Cal. App. 4th 1472. Bright was a seating claim brought as a class action by cashiers at retail stores who were to stand for their entire shift at their registers. The trial court dismissed the suitable seating claim. The employees appealed and the California Court of Appeal, Second District, gave employees the green light to bring suitable seating claims under PAGA and seek penalties under that law. The penalties are $100 per pay period for each aggrieved employee for the initial violation. In the case of a subsequent violation the penalties go from $100 to $200. 75% of the penalties go to the State, for whom the action is brought, and 25% to the employees. A successful plaintiff can also recover an award of attorney’s fees.

The first suitable seating class action to go to trial was Garvey v. Kmart Corporation, U.S.D.C., Northern District of California, in 2012. It resulted in a decision in the employer’s favor. The court found a legitimate basis for requiring employees to stand because they had to project a “ready-to-assist” attitude to customers consistent with the company’s goal of projecting the appearance of efficient service. Surprisingly, the court criticized the stools that plaintiffs had proposed, and commented that if “lean stools” had been proposed the case might have gone the other way. If nothing else, Garvey led lawyers on a hunt for furniture catalogs to figure out that a “lean stool” seems to be a cross between a step ladder and a bar stool.

Notwithstanding this odd result, there has been a steady stream of seating cases, in many cases against retail stores, where cashiers stand all day, and against those banks that require tellers to stand unremittingly at the counter. This author was counsel for the plaintiffs in Brooks v U.S. Bank, a case for supermarket branch tellers of U.S. Bank, in which claims for seating and rest breaks settled for $1.9 million in 2014. Also in 2014, Gallardo v A T & T Mobility was settled for retail sales staff for $1,050,000. In 2011, Church v GameStop was settled for video game retail store employees for $750,000.

In 2013, the Ninth Circuit Court of Appeals was confronted with issues about what the suitable seating mandate means in Kilby v CVS and Henderson v JP Morgan Chase Bank, pending class actions. Kilby involves cashiers at CVS Pharmacy, with Wage Order 7 applicable. Henderson involves tellers at JPMorgan Chase Bank, with the same language of Wage Order 4 applicable. The Ninth Circuit requested that the California Supreme Court answer three questions about these provisions, and those answers were announced on April 4, 2016, in the case entitled Kilby v. CVS Pharmacy, Inc. (63 Cal. 4th 1).

The three questions in Kilby and Henderson are:

  1. For purposes of IWC Wage Order 4-2001 § 14(A) and IWC Wage Order 7-2001 § 14(A), “(1) 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? (a) 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?
  2. 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?
  3. If an employer has not provided any seat, does a plaintiff need to prove what would constitute ‘suitable seats’ to show the employer has violated Section 14(A)?”

The first question addresses a reality of many jobs – some tasks can be performed sitting while others may require standing. For example, even for the most sedentary of secretarial jobs, the employee will have to go across the room occasionally to take papers out of a printer or obtain a file. So what proportion of the tasks need to be “sitting” tasks before the suitable seating requirement is triggered?

The Court answered that “(T)he “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. “

The second question mixes three separate points. One can be assured that any employer who makes its employees stand without letup will have some justification ready – such as “customer perception.” What weight is to be given to these employer justifications for requiring standing? The physical layout of the workplace raises a cost issue. If the employer has designed its space so that there is no room for sitting, can the cost of modification justify not providing seats? Finally, should seating standards be determined on a “one size fits all” basis, or should they be tailored to who is actually in the job? For example, can employers make judgments about which employees are most and least in need of seating by virtue of age and physical characteristics?

The Court answered the second question with the statement  “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.

The third question seems to be an echo of the curious “lean stool” twist in Garvey. For an employee to prevail, does he or she have a burden to find the right chair or stool in a furniture catalog?

The answer to the final question was: “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 employee does not have the burden of finding the perfect chair.

IMG_1267The answers to these questions will have a significant effect on the California workplace, particularly in the retail and banking sectors. This case is a major win for employees, and while it is possible that the employers will fight on for years and try to justify making employees stand, others say that the handwriting is on the wall, and that it may make more sense to give employees chairs as appropriate rather than continuing to fund defense costs and risk sizeable penalties. After all, many banks around the United States let their tellers sit without making any big issue about it, and we have the example of other developed countries like ours-where cashiers sitting in supermarkets and big box stores is as routine as cashiers not sitting sometimes seem to be in California. Accompanying this article are photos of cashiers working a normal day –sitting- in a supermarket in Great Britain. Now that Kilby has been decided, we look forward to uploading photos with some California cashiers doing the same thing. Stay tuned to find out where California workers stand — or sit.


*UPDATED 11/7/2016

Recently, in the suitable seating case Garrett v. Bank of America, the Alameda County Superior Court approved a groundbreaking settlement of $15 million. The Plaintiffs filed this lawsuit on the basis that Bank of America failed to provide suitable seats to its tellers at their workstations, violating California Wage Order 4-2001, Section 14(A).

The total settlement figure includes payments to the employees, payments to the LWDA pursuant to PAGA, attorney’s fees, and all costs of settlement administration. After the deductions, 25% of the net settlement, approximately $2,375,000.00, will be paid to the 22,000 employees and $75,000 will go directly to the three named Plaintiffs. PAGA and the suitable seating law were enacted to protect the workplace rights of employees and the Plaintiffs in Garrett v. Bank of America did exactly that by gaining Court approval of this historical settlement. Not only will the employees in this case benefit from this victory, but all California employees will benefit since the $7,350,000 in penalties received by the LWDA will be used “for enforcement of labor laws . . . and for education of employers and employees about their rights and responsibly” as stated in Labor Code section 2699(i).

There are cases pending around the state for employees in banking and retail industries. Stay tuned for further reports of developments.