Court offers opinion on 'suitable seating' for retail, bank workers

By Taryn Phaneuf | May 12, 2016

SAN FRANCISCO — For retail workers and bank tellers looking for a chance to get off their feet during their shift, the California Supreme Court released an opinion hinting that employers in the state may be obligated to provide a chair.

A number of lawsuits against companies brought by employees who believe they should be provided seating while on the job led the Ninth Circuit Court of Appeals to formally ask the state’s highest court to interpret the relevant code.


The decision ultimately favors employees, Michael Menssen, an employment law attorney at Stoel Rives, told the Northern California Record. Though, it’s not “a slam dunk.”

State labor laws say employers must provide all employees “with suitable seats when the nature of the work reasonably permits the use of seats.” Previously, the California Division of Labor Standards Enforcement was in charge of enforcing state wage codes. It never applied the seating requirements to retail workers, cashiers, bank tellers or other similar employees.

In 2004, state legislators passed a the Private Attorney General Act, or PAGA, allowing private citizens to bring a lawsuit to enforce labor laws. After that, companies started getting sued by individual employees for not providing seats.

“It was pretty clear that the agency in charge of this law thought retailers did not have to have a seat when they were checking out,” Menssen said. “PAGA created a question about that.”

It has been more than a few cases. Menssen estimated 20 companies have been faced with this type of lawsuit so far. However, there haven’t been any opinions to offer an interpretation of the law in these cases.

PAGA also says a plaintiff gets a quarter of the penalties recovered from a lawsuit. The law established a set penalty for those codes that don’t already have one, including the law about suitable seating. For the first violation, the penalty is $100 per employee per pay period. For violations after that, it’s $200.

“That adds up pretty quick,” Menssen said.

It may provide an incentive for an employee to bring a suit. It also provides one for an employer to figure out whether the law applies to them.

The Ninth Circuit consolidated a couple federal cases requiring application of the same law, one against CVS Pharmacy and the other against JPMorgan Chase Bank.

Because the federal court can’t offer an authoritative opinion on a state law, the Ninth Circuit asked the Supreme Court to help. It asked whether “nature of the work,” as stated in the wage code, refers to an employee’s tasks individually or as a whole; what factors should be considered to determine whether the nature of the work “reasonably permits” using a seat; and is it an employee’s job to prove a suitable seat is available.

The court opined that in determining whether a seat should be provided requires consideration of an employee’s “total tasks and duties by location.” From there, the next question is whether a seat would interfere with the employee’s work.

The court also determined that a number of factors should be considered to make the call about a seat, including the frequency and duration of a task and the feasibility or practicability of providing a seat. The layout of the workspace could also be considered, though the court warned against an employer designing a workspace specifically to disallow a seat. Additionally, the court determined that an employer who claims that customer service is better provided by a standing employee would need to show sufficient evidence that that’s true.

The court said physical differences between employees is not a factor that should be considered. Rather, the determination should be based on the tasks the employee performs.

As far as practical application, Menssen said it’s still not quite clear. Now it’s up to the lower courts to apply the test. The court’s opinion doesn’t force a lower court to agree but it does offer a glimpse into a potential future ruling that employers should take note.

“I think the Supreme Court gave strong hints that they would think cashiers can do their jobs just fine sitting down,” he said. “Because this ruling strongly suggested that seats are required, employers that are risk averse at all … will just try to figure out where to put in seats if it’s possible.”

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