Over the past three-plus years, a spate of lawsuits have been filed by employees against employers including large companies like Wal-Mart, Home Depot, Target, 99¢ stores, and Abercrombie and Fitch seeking seating when they are expected to spend most of their day on their feet. Employers have won some cases and lost some.
Employees can file suits regarding this wage order under California's Private Attorney General Act ("PAGA") alleging that the failure to provide seats to cashiers violates California Industrial Welfare Commission Wage Order 4-2002 §14(A) and thus entitles employees to penalties under the PAGA statute. The penalty is $100 for each aggrieved employee per pay period for the initial violation and $200 for each aggrieved employee per pay period for each subsequent violation.
California Industrial Welfare Commission Wage Order 4-2001 §14(A) states:
The California Supreme Court has agreed to clarify three things with relation to this wage order: 1) whether the term "nature of the work" refers to individual tasks that an employee performs during the day, or whether it should read "holistically" to cover a full range of duties; 2) whether an employer's business judgment should be considered in determining whether the nature of the work "reasonably permits" the use of a seat, as well as the physical layout of the workplace and the employee's physical characteristics; and finally, 3) whether the employee must prove what would constitute a "suitable seat" to prevail.
Without clarification from the court, the question is: what should an employer do about seating? In short, an employer should assess the nature of employee work duties and determine whether the nature of the respective jobs reasonably permits the ues of seats and whether there is some reason that seating cannot reasonably be provided to employees. Where employers deem standing to be essential for a job, they should make sure that the job description accurately reflects that determiniation and that the necessity is documented. Employers should also consider making seats available upon request on a case-by-case basis. If a case is filed, this documentation should bolster the argument that the case should not proceed as a class action. Seats should also be available near the employee work area so employees can sit without interfering with the performance of their duties.
If you have an employment related question, please feel free to contact Jason Mauck at the Oakland office of Ericksen Arbuthnot. He can be reached at or 510-832-7770