Question: I manage a retail store. One of my employees asked for a chair to sit in when he is not assisting customers. I think this will convey a poor attitude and impact customer service. He says the law requires me to provide a seat for him. Is he right?


Answer: The California Supreme Court recently agreed to provide clarity on employers’ obligations to provide “suitable seating” for certain employees, including employees in the retail industry. While the notion of allowing a worker to sit down on the job has drawn ridicule from other states and business communities, California’s Industrial Welfare Commission’s wage orders seem to require seating in some industries. Section 14 of Wage Order 7, which applies to the retail industry, says that,

“all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats,” and

“an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.”

Naturally, there are differences in interpreting “the nature of the work,” and when, if ever, sitting down would “not interfere with the performance” of duties.
Although this language has been in Wage Order 7 for over 15 years, no one paid attention to it until 2011, when the first “suitable seating” class action lawsuit was filed against Kmart. The U.S. District Court held that Kmart was not required to redesign its cashier areas to provide seats. The court recognized that Kmart has a “genuine customer-service rationale for requiring its cashiers to stand,” and Kmart’s legitimate interest in efficiency and safety in denying seating to cashiers. The plaintiffs appealed, and in July 2013 Kmart agreed to settle the case for over $280,000 rather than continue to fight the class action lawsuit.
In January 2014, the Ninth Circuit Court of Appeals asked the California Supreme Court to clarify the meaning of the “suitable seating” requirement. The cases that prompted the Ninth Circuit’s request are two class actions, one filed by a former CVS cashier and the second filed by a group of former Chase Bank tellers. In both cases the employers prevailed, and the plaintiffs appealed to the Ninth Circuit, contending that the district courts misapplied the suitable seating law.
In urging the Supreme Court to clarify the interpretation of the suitable seating requirement, the Ninth Circuit cited the potentially “dramatic” impact of the suitable seating law on California employers, stating that “tens of millions of dollars” are at stake in these two cases alone.
Earlier this month, the Supreme Court agreed to address whether:

• The nature of an employee’s work should be considered holistically, or be assessed for each individual task performed;
• Courts should consider the employer’s business judgment concerning whether the employee should stand, the physical layout of the workplace or the physical characteristics of the employee; and
• An employee needs to be able to show what a suitable seat would be.

California employers are anticipating a ruling clarifying the seating requirement so they can focus their resources on compliance instead of defending seating lawsuits.