It seems pretty basic that you shouldn’t punish someone for violating a law that no one understands. The employers who are defending themselves against suitable seating class actions must surely agree.

Most of the California Wage Orders say that: “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” As Ben James reported in Law360 (subscription), the Ninth Circuit is struggling to understand what that means and is considering asking the California Supreme Court to weigh in on the issue. In several pending appeals, the Ninth Circuit is asking the parties’ positions on whether it should ask the state high court to clarify what “suitable seats,” “nature of the work,” and “reasonably permits” mean in that context.

This isn’t the first time unclear language in wage orders resulted in widespread litigation. Think of all the time, money, and effort spent litigating the requirement that “[n]o employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes . . . .” As the California Supreme Court pointed out in Brinker, “[t]he wage order employs no verb between ‘without’ and ‘a meal period’ (e.g., providing, requiring, offering, allowing, granting) to specify the nature of the employer’s duty.” Like then, employers may have a long wait before they get definitive guidance on the extent of their obligation to provide seats.

So get comfortable. This may take a while.