By Julie Ann Giammona
Most of California’s Industrial Welfare Commission (IWC) wage orders require that employees “shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” In 2016, for the first time, the California Supreme Court interpreted the IWC requirements to mean that employers must provide seats if any tasks at a given workstation, (not all tasks), can be done sitting down. Kirby v. CVS Pharmacy. Specifically, the Court determined that employees should be given seats for tasks (1) that are performed at a particular location in the workplace; (2) that can be performed while seated; and (3) where providing those seats will not interfere with the performance of their standing tasks.
The Kirby court left unresolved the question of how to determine if an employee was in fact “provided” suitable seating by the employer. That question has now been addressed by the California Court of Appeal in Meda v. AutoZone, Inc. (2022) which concluded that an employer has satisfied the “provided” requirement when it “plac[es] a seat at the employee’s workstation, as is commonly done in an office setting.” The AutoZone court, however, specifically acknowledged that doing so “may not always be feasible given the particular characteristics of a workplace.” Under such circumstances, “the inquiry as to whether a seat has been ‘provided’ to the employee may become fact-intensive.” The court set forth the following criteria to consider:
- the proximity of a seat to an employee’s workstation;
- the number of employees sharing a workstation;
- whether employer provided notice to employee of their right to suitable seating;
- whether employee has access to the seating, or the seating is only intended for other use (such as located outside a manager’s office and intended for customer use only);
- whether employer discouraged use of seating in a particular area; and
- the extent to which a seat may obstruct work or create a safety risk.
The AutoZone decision is significant in that it is the first published California decision to provide guidance on the interpretation of IWC “provided” requirement in the context of seating. Moving forward, employers should inform employees of their right to use seats (either in handbook or other written communication), as well as verbally. The AutoZone decision expressly noted that the burden is on employers to demonstrate that the notice actually reached the employee. To that end, we recommend including a discussion of seating procedures in the initial onboarding of new employees.
In addition to informing employees, employers should make seats available in close proximity to employees or tell employees that seats in other areas are available and can be moved. Seating should no longer be thought of as something that is merely provided as a disability accommodation. Given California Labor Code Private Attorneys’ General Act (PAGA) (which allows actions for alleged violation of the wage orders), employers should be on high alert to avoid such potential liability. Civil penalties under PAGA are $100 per aggrieved employee per pay period for an initial violation, and $200 per aggrieved employee per pay period for subsequent violation.
Ferber Law is available to assist employers to take proactive steps to comply with suitable seating requirements.
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.