Founder and Managing Partner
Attorney of Counsel
The Wage Order is ambiguous on this point
California Wage Order No. 7 (applicable to dealers) requires you to provide all working employees with suitable seats when the nature of the work reasonably permits the use of seats (Section 14(A)). It also states that 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 (Section 14(B)).
But folks have been confused by what “nature of the work” means or how to determine whether the nature of the work “reasonably permits sitting.” And there was no interpretive guidance on the issue. In fact, it was unclear who had the burden of proof on these issues.
So class action lawsuits were filed
So, naturally, class action lawsuits ensued. Two such cases caught the attention of the California Supreme Court. One of these cases involved a bank teller who handled customer banking transactions while standing at the teller stations, as well as walking to safety deposit boxes, covering the drive-up teller station and handling issues with ATM (Henderson v. JP Morgan Chase Bank NA). The other case pertained to a pharmacy customer service representative whose duties involved checking-out customers at the cash register, organizing and stocking shelves, gathering shopping baskets, vacuuming and removing trash (Kilby v. CVS Pharmacy, Inc.). The trial court denied class certification in Henderson, finding no commonality of issues. Plaintiffs appealed. In Kilby, the trial court determined that the employees’ full scope of duties should be evaluated together, and because some of the assigned duties required the employee to stand, the employer was not obligated to provide seating during working time. As such the court granted summary judgment in favor of CVS and the plaintiffs appealed.
The California Supreme Court decided to provide some clarity
After taking these two cases up, the Supreme Court decided the following three issues: (1) Does the phrase “nature of the work” refer to an employee’s individualized tasks performed during the workday or to the entire range of duties performed during a given work shift?; (2) In determining whether the work “reasonably permits” the use of seats, are factors such as the employer’s business judgment, the physical layout of the workplace, and an individual employee’s physical characteristics relevant? (3) If no seat is provided by the employer, does the employee have the burden to prove that suitable seating could be provided?
What did the California Supreme Court hold?
The Court decided these issues as follows:
- The phrase “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for. As such, the focus is on the specific location (such as a teller window or customer service counter) combined with the tasks to be performed at that location and whether those tasks reasonably permit the use of a seat. Factors for this determination include: the relationship between standing and sitting tasks, the frequency and duration of those tasks with respect to each other, and whether sitting, or the frequency of transitioning between sitting and standing, would unreasonably interfere with other standing tasks or the quality and effectiveness of overall job performance.
- Whether the nature of the work “reasonably permits sitting” is an objective determination based on the totality of the circumstances. The physical layout of the workplace and the employer’s business judgment are relevant factors but not dispositive. Assessment of this issue includes factors such as: whether providing a seat would unduly interfere with other standing tasks, whether the frequency of transition from sitting to standing would interfere with the work, and whether seated work would impact the quality and effectiveness of overall job performance. The focus of the inquiry is the nature of the work rather than an employee’s individual characteristics, such as his or her physical traits.
- If an employer takes the position that it does not provide seating because there is not suitable seating available, the employer has the burden to prove that there is no available suitable seating.
How does this ruling apply to dealers?
Applying these concepts to a hypothetical dealership situation, if a parts department employee divides her time between 1) working the parts counter, and 2) pulling parts in the warehouse, a separate evaluation should occur for each work area. As such, if under this hypothetical situation, the counter work involves interacting with customers, answering the phones and handling parts inventory transactions on her computer, a seat would probably be required at this location since the tasks can be performed sitting down and a seat should not interfere with the performance of those tasks. If, on the other hand, that employee’s duties within the parts warehouse primarily involve walking up and down aisles and climbing up ladders to retrieve parts, and rapidly walking the parts to other areas, seating would probably not be required for that work area since sitting down during this time would interfere with her ability to move up and down the warehouse aisles, retrieve parts from the shelves, and take them to other areas.
What must dealers do to be in compliance?
To avoid a class action, Dealers should conduct a review and analysis now to determine compliance. That analysis should be conducted for each work area or function for which an employee may request seating (instead of a holistic view of the totality of the employee’s job tasks), and that, unless providing a seat in a given work area would unreasonably interfere with the effective performance of the particular tasks being performed in that area, seating would probably be required. Although this new Supreme Court “clarification” may in some ways raise more questions than it answers, it does provide a starting point for the analysis. Because each work situation is unique, there is no standard approach, and employers should evaluate all positions independently with the involvement of knowledgeable legal counsel.