We’ve been following the fate of “suitable seating” class actions for three years now. There was a brief glimmer of hope in 2011 when a federal judge in LA dismissed a class action by bank tellers because they didn’t claim that they’d ever asked for seats. But the Ninth Circuit Court of Appeal, finding no such requirement in the Wage Order, reversed in an unpublished opinion.
Then in December, we reported on Garvey v. Kmart, the first such case to go to trial. Although the employer won, the court wondered aloud whether the result would have been different if the plaintiffs had requested a different type of seat – called a lean-stool. Now that case is up on appeal, too.
So if you’re waiting for clarity to emerge regarding the requirement that "all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats . . . ," you might want to take a seat. It could be a while.
Or, if you have a category of employees who are traditionally required to stand in one place, ask yourself whether their duties are such that you could provide them with seats – perhaps these newfangled lean-stools (or what the DOL calls stand-lean stools). That way, as other employers wait to see if they’ll be subject to expensive class action claims, you can sit on the sidelines, or in the cheap seats. In other words, you could just sit this one out.