This presentation was prepared by my colleagues David Faustman and Cristina K. Armstrong:
1. Do we need to provide seats for our employees?
Yes. Section 14 of almost all of the Wage Orders provides the following:
· All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats; and
· When employees are not engaged in the active duties of their employment and the nature of the work requires standing, an adequate number of suitable seats shall be placed in reasonable proximity to the work area and employees shall be permitted to use such seats when it does not interfere with the performance of their duties.
Ultimately, the Wage Order obligates retail employers to provide seats to all of their employees, regardless of whether that employee requests a seat and in addition to any cashiers who require a seat as a reasonable accommodation. Neither the Courts, nor the Division of Labor Standards Enforcement (DLSE) have provided any substantive guidance on what constitutes “suitable seating” for employees.
Only Wage Order 17 (Miscellaneous Employees) does not have a provision for Seats. Wage Order 14 (Agricultural Occupations) and Wage Order 16 (Construction, Drilling, Logging and Mining Industries) have provisions for Seats that are more specific to their industries.
2. What type of seat is “suitable”?
Suitability may depend on the circumstances of the workplace. A basic stool or chair that is capable of holding an average person is likely acceptable in most workplaces. In some workplaces, a bench or seat that folds down from a wall may be most practical.
3. How many seats are necessary in each workplace?
The number of seats necessary at each workplace will depend on the nature of the business and the circumstances at each workplace. Ideally, an employer should provide one seat per employee per shift. As a practical matter, however, this may not be possible. Given the fluid nature of retail work, one seat for every three employees should be sufficient. This number, however, is not a threshold amount, and should be used a guidance in assessing your particular situation.
4. Where must the seats be located?
The exact location of a seat is left to the employer’s discretion, but the Wage Order does require that seats be placed in reasonable proximity to the work area. It is advised that at least one seat be available at each cash stand, and that all break rooms and back offices be equipped with seats. In locations where employees are required to walk around, care should be taken to place seats in locations where employees can easily view their work area so that they are immediately ready to engage customers when necessary.
5. Do employees need to be allowed to sit down during all working hours?
No. The Wage Order does not implement a blanket requirement that all employees must be able to sit at any time. It does, however, require that employees be allowed to sit down if the nature of their work reasonably permits the use of seats. For example, a cashier in most retail environments must be allowed to sit down because the nature of their work in ringing up sales reasonably permits them to sit during the performance of those job duties.
6. What about employees that are required to move around as part of their job duties?
The Wage Order recognizes that some jobs require employees to stand and move around. The employees are entitled to have seating available near their work area. The employees must be allowed to sit when it does not interfere with the performance of their job duties. For example, a non-cashier retail associate whose job duties include customer service and restocking shelves on the sales floor must be allowed to sit in the event that there are no customers in the store and her other job duties have been completed.
7. Can I fire an employee who refuses to stand up during the performance of his duties?
It depends on whether the employee’s work reasonably allows him to sit. Employers cannot prohibit employees from sitting down if sitting down does not interfere with the performance of their job duties. The termination of an employee who asserts his right to sit down, when the nature of his job reasonably allows, is a violation of Labor Code, and may be the basis for a wrongful discharge claim.
8. What are the penalties for non-compliance?
Although the Wage Order does not contain a penalty for violation of this provision California courts have held that employees can recover penalties for a violation of this Wage Order under California’s Private Attorney General Act of 2004 (PAGA). PAGA sets a penalty of $100 per employee per pay period for the initial violation, and $200 for each subsequent violation. Assessed penalties are divided between the state and the aggrieved employees pursuant to the statute. Despite the one year statute of limitations, it is not difficult to imagine the substantial amount of potential penalties that could arise under PAGA in a class action based on the suitable seating requirements of the Wage Order.
9. What other steps can an employer take to minimize its legal risk?
Employers should audit their job descriptions and policies and revise any statements which prohibit sitting down or mandate standing up during the workday. Employers should consider implementing a policy which provides for suitable seating in all of its workplaces where the nature of the work reasonably permits the use of seats.
Update – July 21, 2011:
Do employers have to offer seats to all employees or only those employees who ask? This is an open question. Read how one court answered the question here.