California Employers have watched in recent years as an obscure provision in California Wage Orders has wreaked havoc in the courts. The provision requires “suitable seating” for employees when the nature of their work reasonably permits the use of seats. Not surprisingly, awareness of this issue came as a result of a warped interpretation of the provision by class action plaintiffs’ counsel.

Class action lawsuits alleging employers failed to provide suitable seating in violation of Labor Code § 1198 and Wage Orders appeared to be triggered was by the Court of Appeal ruling in Bright v. 99 Cents Only Stores (2010) 189 Cal.App.4th 1472. There, the Court of Appeal permitted a “suitable seating” claim to proceed under California Private Attorney General Act.

Prior to that ruling, “suitable seating” lawsuits were rare. That was likely a result of the 1986 Chief Deputy Labor Commissioner opinion that these seating provisions were “originally established to cover situations where the work is usually performed in a sitting position with machinery, tools or other equipment. It was not intended to cover those positions where the duties require employees to be on their feet, such as salespersons in the mercantile industry.” The 2010 Court of Appeal decision seemed to fly in the face of this decision and caused the plaintiffs’ bar to pursue this new line of assault with vigor.

Despite this the law on this issue is scant. Cases filed in 2011 are just now starting to go to trial. Two pending cases should clarify whether and under what circumstances California employers must provide suitable seating. A case against K-Mart before the United States District court for the Northern District of California has now gone to trial and is under submission. Another case against Bank of America is currently before the Ninth Circuit Court of Appeal.

In Green v. Bank of America, the district court dismissed a putative “suitable seating” class action holding that pursuant to the 1986 Opinion by the deputy labor commissioner that an employer need only give seats to individuals who request them and there was no allegation in the complaint that any employee had requested a seat. That decision is now on review before the Ninth Circuit, which presumably will determine what “provide” means in the context of the “suitable seating” requirements. This sounds eerily familiar to the issue the California Supreme Court faced in Brinker v. Superior Court. Hopefully the Ninth Circuit will follow Brinker’s guidance.

The “suitable seating” trial relating to K-Mart’s cashiers, commenced in San Francisco – Garvey v. Kmart. This case is looking at the employers’ expectations regarding job duties and whether “the nature of the work reasonably permits the use of seats.” This case is dealing with the requirement more head on.

The plaintiffs in these types of cases typically argue that a seat must be provided if the job “could” be done seated. However, that is much broader than what the Wage Order requires. A much larger pool of job positions could theoretically be done while seated then what the Labor Code and Wage Order requires.

Among other things, many employers have the reasonable expectation that having employees stand in order to make eye contact with customers, establish a relationship with them and be in the best position to assist them best serves their customer and the overall business. Ultimately the customer experience is greatly heightened by attentive employees standing and ready to help. Walking into a store where the employees are all sitting around may be reasonably viewed by employers as uninviting. The Kmart trial should provide some guidance as to whether such employer expectations and preferences will be given weight. We wish Kmart the best of luck on this decision. We will continue to keep you apprised of the outcome in this case.

While we wait for decisions in these cases, employers would be wise to examine whether and why certain jobs are expected to be performed while standing. But another, larger societal thought keeps jumping into my head when I think about this issue. Where the doctors are saying that sitting for long periods of time is killing us, or at least shortening our life spans, and the plaintiffs’ bar is saying we all must sit down on the job, will we all just eventually hover?

Stay tuned!