An employer’s obligation when it comes to workplace seating in California – San Diego Union-Tribune

A regular reader suggested addressing the regulation requiring almost all California employers to provide suitable seating for employees.

Deceptively simple rule

To quote paragraph 14 in most of the occupation-specific, employee-protective wage orders governing the California workplace:

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

These terms don’t define themselves. An employer and an employee’s view of reasonableness may differ.

Work requiring employer-provided seating

In 2016, the California Supreme Court analyzed the seating rule in Kilby v. CVS Pharmacy, Inc.

The court rejected an all-or-nothing, holistic categorization of jobs as either standing or sitting based on how an employee spends most of their time. Instead, the court directed lower courts to “examine subsets of an employee’s total tasks and duties by location … and consider whether it is feasible for an employee to perform each set of location-specific tasks while seated.” Courts will consider “the actual tasks performed, or reasonably expected to be performed,” not written job descriptions.

Whether work “reasonably permits” the use of a seat depends on the totality of the circumstances. That analysis “begins with an examination of the relevant tasks, grouped by location, and whether the tasks can be performed while seated or require standing. This task-based assessment is also balanced against considerations of feasibility.”

Feasibility includes a qualitative analysis of such things as whether providing a seat would impede standing tasks and whether seated work would degrade the employee’s overall job performance.

The court underscored that each subpart of the rule may apply to a particular employee “at various times during the workday, though not at the same time …Taking the two provisions together, if an employee’s actual tasks at a discrete location make seated work feasible, he is entitled to a seat under section 14(A) while working there. However, if other job duties take him to a different location where he must perform standing tasks, he would be entitled to a seat under section 14(B) during” lulls in operation, when the employee is still on the job, but “not then actively engaged in any duties.”

Role of business judgment, physical layout

The court did not question that “an employer may define the duties to be performed by an employee.” Those duties include both physical tasks and meeting the employer’s reasonably expected level of customer service. An employer’s “mere preference” that a given job be performed entirely while standing, however, is not decisive. An objective standard “protects employees because it does not allow employers unlimited ability to arbitrarily define certain tasks as ‘standing’ ones, undermining the protective purpose of the wage order.”

The physical layout of a workspace also is included in evaluating whether the totality of the circumstances requires an employer to provide seating. “A workspace’s physical layout may inform the expectations of both the employer and employee with respect to job duties.”

But an employer cannot design a workspace to evade the seating requirement. An “employer may not unreasonably design a workspace to further a preference for standing or to deny a seat that might otherwise be reasonably suited for the contemplated tasks … Evidence that seats are used to perform similar tasks under other, similar workspace conditions may be relevant to the inquiry, and to whether the physical layout may reasonably be changed to accommodate a seat.”

Duty to “provide” seating

It is not enough for an employer to place seating somewhere in the workplace. In 2022, the California Court of Appeal ruled in Meda v. AutoZoners, LLC that, while an employer need not “always place a chair at or within a specific distance of a workstation, 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. This is particularly true where … the 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.”

Virtually no risk-free approach

Even a conscientious employer following the rule and regulatory and judicial interpretation of the rule may have its workplace seating policy second-guessed. The California Supreme Court has said an indeterminate “reasonableness remains the ultimate touchstone” of the fact-specific application of the seating rule.

Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek, where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.