Most of California’s Industrial Welfare Commission (IWC) wage orders mandate that employees “shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” The California Court of Appeal’s new decision in Meda v. Autozone, Inc. addressed what an employer should do to be deemed to have “provided” required seating, and the considerations in such a determination. While the issue may become fact-specific, an employer should inform employees expressly that they may use a seat if a job allows them to do so and make seats available for use in the employee’s area.
California’s Suitable Seating Requirement
Fourteen of the 17 IWC wage orders (Nos. 1-13, and 15) have the seating requirement quoted above. They also require that[w]hen 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.”
Wage Order No. 14 (Agricultural Occupations) requires suitable seats for “employees working on or at a machine” and when “the nature of the work reasonably permits the use of seats.” Wage Order No. 16 (Certain On-Site Occupations in the Construction, Drilling, Logging, and Mining Industries) requires seats for employees “[w]hen practicable and consistent with applicable industry-wide standards” and “when the nature of the process and the work performed reasonably permits the use of seats.” Wage Order No. 17 (Miscellaneous Employees) has no seating requirement.
Labor Code section 1198 prohibits employing an individual under conditions violating a wage order. In recent years, numerous lawsuits sought civil penalties under the California Labor Code Private Attorneys’ General Act (PAGA) for alleged violation of the wage orders’ seating provisions. The lawsuits have focused mainly on the retail and banking industries, but many employers could face these claims. Potential civil penalties are $100 per aggrieved employee per pay period for an initial violation, and $200 per aggrieved employee per pay period for subsequent violations.
In Kilby v. CVS Pharmacy, Inc., 63 Cal.4th 1 (2016), the California Supreme Court addressed when the “nature of the work” gives rise to having to provide seats. ArentFox Schiff’s alert on that decision can be found here. Further reviewing the seating rules, Meda considered what steps an employer must take to have “provided” seats as required. It is the first published California state court opinion to do so.
Seats Somewhere, But Employees Not Clearly Told Available
Meda involved a sales associate at an auto parts store. She worked at the parts counter and ran the cash register at the cashier station. She estimated that all cashier tasks could be done while seated and half of the time at the parts workstation. The company had two raised chairs in the store, which were generally used at two raised workstations in or near the manager’s station area. The manager often used one of the chairs at one of the workstations.
The employee used one of the raised chairs at the cashier station for two days as a disability accommodation for an injured foot. She believed that employees could use the chairs only as an accommodation. She never asked permission to use them otherwise. No one at the store ever told her she was allowed to, or prohibited from using, the chairs at her workstations.
The employment maintained that it had a policy to make a seat available for any employee who needed or wanted to use one. A management memo directed store managers to make sure each store had two stools available that could be placed by the manager’s office, at the commercial desk, or by the end of the cashier workstation. Significantly, the company did not provide training on its seating policy. Nor did the company include the policy in its employee handbook.
After quitting, the employee sued under PAGA, claiming the company should have provided suitable seating at the cashier and parts counter workstations. While the employer maintained the employee knew seating was available, she insisted that it only provided seats as a disability accommodation. The trial court in Los Angeles granted summary judgment for the employer without trial. It held that “provide” as used in the wage order means “make available,” with the former employee unable to show that the company failed to make seating available based on the above facts. The Court of Appeal reversed, finding disputed issues requiring a trial.
How to Determine Whether an Employer Provided Seating
The wage orders do not define “provide” with respect to seating.
Applying dictionary definitions, the Court of Appeal held that “’provide’ generally means ‘make available to.’” In turn, “available” means “’present or ready for immediate use.’”
To satisfy this standard, an employer “may provide a suitable seat for an employee by placing a seat at the employee’s workstation, as is commonly done in an office setting.” The Meda court found it unnecessary to consider whether an employer must place a seat at every workstation involving work that could be performed while seated, which “may not always be feasible given the particular characteristics of a workplace.” Yet, it concluded that where an employer does not place a seat at a workstation, “the inquiry as to whether a seat has been ‘provided’ to the employee may become fact-intensive.”
The Court of Appeal recognized that “every workplace is different,” with a “variety of factors” possibly impacting how an employer could “provide” seating at a particular workstation. For example, courts might consider the nature of an employee’s job responsibilities, how frequently an employee changes tasks, the physical layout, how often an employee changes tasks, the number of employees sharing a workstation, and the extent to which a seat may obstruct work. or cause congestion (or safety risks).
In Meda, the court concluded that conflicts in the evidence – or how to view it – required that the claim be resolved in a trial. Among the important points, the court noted that, although the employer had chairs in the store, they were not at or near the workstations in question. Employees would have to leave the workstations and move a chair to those places. The court held that “the proximity of a seat to an employee’s workstation is a relevant factor to be considered when assessing whether a seat has been provided for the employee’s use.” The court underlined that this factor is especially important where an employer “has not advised its employees that seats are available for their use by either directly informing the employees or including the seating policy in its employee handbook.”
In addition, because the raised chairs were at other workstations and the manager often used them, the court concluded that “a reasonable inference” could be drawn that the chairs were not provided for use at the other workstations. It added that placing the chairs in other areas could be seen as discouraging their use at the cashier and parts counters, with employees possibly feeling uncomfortable with taking a chair from the manager’s area. Lastly, the fact that no other employees used a raised chair at those workstations suggests that the company prohibited or discouraged the use of seats there, except as a disability accommodation.
Takeaways for Employers
As the first published California decision to address the considerations for determining whether an employer provided seating, Meda is a noteworthy decision. In many types of work, as the decision is recognized, an employer can satisfy the suitable seating requirement by placing a seat at an employee’s workstation. In other situations allowing an employee to use seats, an employer should expressly inform employees that they can use seats. Employers should inform employees through employee handbooks and other written communication, as well as verbally. One takeaway from Meda is that such notice should be in a form that actually reaches employees. Employers should also cover seating in training.
Beyond informing employees, employers make seats available in the vicinity, or let employees know that seats in other areas are available for use and may be moved. Given California’s express seating requirements in the wage orders, employers and employees need to understand that seating is not just something that employees need to provide as a disability accommodation.
California’s seating rules have given rise to numerous lawsuits under PAGA for civil penalties. To comply with the law, and avoid potential liability, California employers should take proactive steps to comply. The issues involved in determining whether the nature of particular work allows the use of seating, how an employer may comply with providing seating, what seating may be suitable, and how many seats may be required can be complicated. Employers may wish to consult counsel on how to comply – but they should not sit by idly.[View source.]