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Law Office Management

Jul. 2, 2015

Do Retail Workers Have a Right to 'Suitable Seating'? CA Supreme Court Takes Up Issue

The Ninth Circuit asked the state Supreme Court to clarify whether suitable seating laws apply to retail workers.

Seating arrangements in workplaces across the state may get a little adjustment, depending on how the California Supreme Court handles certified questions about state law that the Ninth U.S. Circuit Court of Appeals has asked of it in two cases.

Most of the state Industrial Welfare Commission's wage orders (15 of 17) require employers to provide workers "suitable seats when the nature of the work reasonably permits the use of seats." Employees have stood up for that right since the Second Appellate District held in Bright v. 99cents Only Stores (189 Cal. App. 4th 1472 (2010)) that they can seek penalties under the state's Private Attorney General Act.

Now, in Kilby v. CVS Pharmacy and Henderson v. JP Morgan Chase Bank (questions certified, 739 F.3d 1192 (9th Cir. 2013)), the state Supreme Court will address whether retail workers have a right to "suitable seats."

Marc A. Koonin, an employment associate with Sedgwick in San Francisco, said in an email that the exposure for major chain stores could amount to millions of dollars: "This will be a big deal, since there is currently so little guidance on these issues, and since the extent of potential employer exposure is likely to change significantly depending on the specific answers."

CVS, whose lead counsel is Tim Long, a partner with Orrick, Herrington & Sutcliffe in Sacramento, argues that the seating rule was meant to apply only in factory settings - to workers on assembly lines or operating sewing machines, for example - not in retail environments. State wage orders address numerous conditions in various workplaces, from broadcasting to manufacturing.

"When you come into a retail store and the cashier is seated, it gives you a very different experience," says Long. "When someone is standing, it projects a feeling that they are ready to help you."

The Ninth Circuit asked the state Supreme Court to clarify what factors courts may consider in determining the suitability of seating, including:

  • all or just some of an employee's duties
  • the employer's business judgment
  • workplace layout
  • workers' physical characteristics
  • whether an employee must prove what qualifies as a suitable seat.

Michael Rubin, a partner at Altshuler Berzon representing both the CVS and JPMorgan plaintiffs, says job tasks should be disaggregated to determine which could be performed while seated, and he says the law requires California employers to provide seating for workers while they're performing those tasks, much as it requires employers to provide breaks for meals and rest.

The state's high court hasn't yet set a date for argument on the Ninth Circuit's certified questions.

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Donna Mallard

Daily Journal Staff Writer

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