Do you let your employees sit down at work? You may be required to…
Having employees sitting down on the job may no longer be something that employers frown upon, but may in fact be a legal requirement, under California law. A nine-year legal battle over the provision of seating to cashiers ended in Walmart paying out a $65 million dollar settlement in early October 2018. The settlement also resulted in a promise on the part of the Company to begin providing seating to cashiers. At the heart of the case is the provision in California’s Industrial Welfare Commission’s Wage Orders which requires that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”
In responding to the lawsuit, Walmart took the position that providing seating for cashiers would create safety hazards, as well as negatively impact the productivity of workers. Walmart further asserted that the nature of the work performed by the cashiers did not reasonably permit seating because their duties included such tasks as scanning large items, stretching to see the bottom of shoppers’ carts, bag merchandise, and occasional work away from the registers.
Until the passage of the Private Attorneys General Act (“PAGA”) in 2003, violation of the seating requirement could only be pursued by Labor Commissioner. However, PAGA created a private right of action which paved the way for the Walmart lawsuit, as well as similar lawsuits against CVS, JP Morgan Chase Bank, Kmart, AT&T, and Home Depot.
In 2016, the Ninth Circuit Court of Appeals requested guidance as to the seating requirement from the California Supreme Court in cases against CVS (Kilby v. CVS Pharmacy Inc.) and JP Morgan Case Bank (Henderson et al. v. JP Morgan Chase Bank). The California Supreme Court ruled that “nature of the work” referred to discrete tasks that the employees performed throughout the day, rather than a holistic consideration of the employee’s entire day – in other words, the Court would consider each task that the employee is expected to perform, and if seating would be reasonably permitted while performing that particular task, then the employer would need to provide seating during the time the employee performed that task. However, the Court also noted that it would consider the business judgment of the employer, as well as the physical layout of the workplace in determining whether or not seating was “reasonably permitted.”
While the settlement of the Walmart case means no decision from the court as to whether Walmart’s specific policies violated California’s Wage Orders, employers should review the duties of their employees to determine whether or not the work that the employees perform “reasonably permits” the employees to sit during particular tasks.
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