James F. Mahoney, Attorney

April 2016

California Declares War on Uncomfortable Seating at Work

"All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."

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This is not a fake story ...

In its never-ending efforts at driving its employers to distraction, the California Supreme Court, in Kilby v. CVS Pharmacy, clarified for the 9th Circuit the nature of employee seating that had previously been made a requirement in some California wage orders.

California law,  Cal. Code Regs., tit. 8, §§ 11040, subd. 14(A), states that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  This strongly suggests that employees are entitled to a seat when their tasks can be accomplished while so seated.

There has been no interpretation as to what seats are “suitable,” who determines the “nature of the work,” or under what circumstances the “nature of the work” “reasonably permits” suitable seats.

According to the California Supreme Court, whether an employee is entitled to a seat depends on an objective assessment of all relevant factors – the totality of the circumstances. But the analysis should begin with the examination by you, the employer, of whether tasks at a particular location may be performed while seated.

Heck, what else do you have to do anyway to run your business?

The requirement applies to individual tasks performed throughout the workday, rather than the entire range of duties performed during a complete shift or contained within a job description. I’d suggest you follow each of your employees for a typical work day and ask (constantly), “Can I get you a comfortable chair?”

Failure to comply with the seating requirement exposes employers to potential class action litigation (seriously), in which the employers will bear the burden to prove the unsuitability of seating (you may want to bring a video camera with you for later use in evidence as you follow your employees around). Oh, but don’t forget the privacy issues you may be raising, so ask permission to film their day.

The lack of funding provided to California’s Department of Labor gave purpose to the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), which “authorizes an employee to bring an action for civil penalties on behalf of the state against his or her employer for Labor Code violations committed against the employee and fellow employees.”  (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360).

I don’t know if you pay attention to TV broadcasts of war correspondents reporting from conflict zones, but there’s obvious ubiquity of the very familiar molded plastic chairs we all know and love.

Presumably these plastic chairs provide accommodative seating arrangements that pass muster with all sorts of rebels in war-torn countries, so they should be just fine in your California work settings as well. Buy a set before the price skyrockets – or before a new international conflict puts a strain on their production.