Here’s another post from Dave Faustman who, along with Cristina Armstrong, is doing an amicus brief in this matter on behalf of the Retail Industry Leaders Association.

As we’ve been reporting for years, an obscure provision in the Wage Orders of the Industrial Welfare Commission has spawned a rash of lawsuits against California companies, primarily banks and large retailers, to force the employers to provide seats for employees. Section 14(A) of the Wage Orders states:

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

This provision’s predecessor was enacted in 1919, and was originally intended to protect women and children in the garment industry. The language was later changed to apply to all employees, but it was assumed for decades that it didn’t apply to retail employees who interact with the public at the sales counter or on the floor.

That is, until now. Recently, a group of plaintiffs’ lawyers, and their cheerleaders in the unions, have been using the Private Attorney General Act (“PAGA”) as the vehicle to sue employers for millions of dollars in penalties and attorneys’ fees for failure to provide seats. The lower courts have been grappling with these cases, trying to decide the meaning of the words “nature of the work”, “reasonably permits” and “suitable seats”. The California Supreme Court has agreed to step into the fray in a consolidated case involving the drug chain CVS and the retail bank JP Morgan Chase (Case No. S215614).

The primary issue for the High Court to decide is whether Section 14(A) should be decided using a “holistic” approach that considers all of the circumstances of the job and the workplace, as well as the employer’s business judgment as to whether employees should be required to stand when working. The employers urge this approach. The plaintiffs, on the other hand, argue that the “nature of the work” really means specific tasks during the work shift that may be performed while seated, such that employees should be allowed to sit during certain times. The companies counter that employers should be allowed to require employees to be “on their toes” and ready to provide good customer service at all times.

The plaintiffs also argue that sitting is important for the “health and safety” of employees. The employers respond that the supposed health benefits of sitting are questionable, that forcing chairs into the work space may create a safety problem, and that in any event, with mandatory meal and rest breaks in California, the most an employee is required to stand at one time is only two hours.

Finally, the plaintiffs argue that employers should be required to redesign and rebuild workstations to allow for the addition of seats. The companies argue that courts are ill-equipped to impose such a requirement, and to do so would be an abuse of PAGA. Obviously, the Court’s decision could have far ranging effects on the cost and practicality of doing business in California. The parties’ briefs have been filed, and friend-of-the-court briefs will be filed within the next few weeks. A hearing and decision in the case will likely happen within the next few months.