When employees must be provided a seat | TahoeDailyTribune.com

When employees must be provided a seat

Jim Porter

Two lawsuits filed by employees, one against CVS Pharmacy and the other against JPMorgan Chase Bank, made it to the California Supreme Court.

Both address when employers must provide seating for their employees. I’m not sure the answer is any clearer now that the Supreme Court has ruled.

Two Lawsuits

Nykeya Kilby worked for eight months as a customer service representative for CVS Pharmacy. Although she was told before she was hired that she would have to stand while performing her various duties, Kilby wasted no time suing CVS to establish the right to sit down on the job. Her duties included operating a cash register, stocking shelves, vacuuming and removing trash.

Kemah Henderson and three other bank tellers worked at JPMorgan Chase Bank. They also sued for the right to sit while working.

Both Kilby and Henderson lost at the federal trial court but appealed. The cases were consolidated and made it all the way to the California Supreme Court.

Wage Orders Requiring a Seat

Industrial Welfare Commission Wage Order No. 7-2001 applies to the mercantile industry, including CVS: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” No exemption for small businesses.

Wage Order No. 4-2001 applies to professional, technical, clerical, mechanical and similar occupations, including Chase; 4-2001 mirrors Wage Order 7-2001.

The Supreme Court had to wrestle with what those wage orders mean when applied to Kilby’s and Henderson’s work duties. Do they have a right to sit while working?

History of Seating Law

In 1911, the Legislature enacted laws requiring employers to “provide suitable seats for all female employees” and to allow them “to use such seats when they are not engaged in the active duties of their employment.” Those wage orders were broadened in 1916 to apply to “women and child laborers.”

In 1966, a wage order was added to clarify that female employees were entitled to suitable seats when “the nature of the work permits.” In 1972 and 1973, the Labor Code was amended to make the wage orders applicable to all employees regardless of age or gender.

Supreme Court Ruling

The Supreme Court looked at the history of right-to-sit cases analyzing the phrase “nature of the work reasonably permits.”

The Court ultimately concluded it is relevant to look at the “totality of circumstances” to determine whether an employer must provide an employee a seat.

Factors include whether providing a seat would unduly interfere with other standing tasks, frequency of transition from sitting to standing, practicality of providing seating and the physical layout of the workspace. The decision involves a qualitative assessment of all relevant factors. The individual employee’s physical characteristics is not a factor.

The employer’s business judgment is considered, but not accorded deference to other factors.

And finally, the Court wrote that an employer seeking to be excused from the seating requirement must show compliance is infeasible because no suitable seating exists.

Jim Porter’s Take

I must say I read this Opinion a dozen times and would be hard-pressed to state with any confidence what the practical law on seating is in California. I guess we’ll have a better idea if we start seeing bank tellers and check-out clerks sitting in chairs or cushioned seats — or with legs shriveled up due to non-use.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. He may be reached at porter@portersimon.com or http://www.portersimon.com.

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