| Are You Familiar With California’s Seating Law? |
| California’s Seating Law, codified in the state’s wage orders, requires employers to provide workers with the ability to sit when the job allows for it. The law states simply, “if it’s feasible and practical to provide seating, you must.” Litigation has substantially increase since the statute’s implementation in 2001. Why? Many employers incorrectly assumed it was their decision whether an employee could sit down or not. Or that employees with a disability needed to “qualify” for the seating provision. Kilby v. CVS Pharmacy Inc. One of the biggest questions the law raised was whether employers could basically say, “This job doesn’t allow you to sit down” due to its nature. In Kilby v. CVS Pharmacy, Inc. (2016), the California Supreme Court ruled this interpretation too broad. In line with the court’s decision, employers have to “break a job into its parts” and determine whether each duty can be performed while seated. The case consequently established that suitable seating is “task-specific.” In a grocery store, for instance, a worker can be seated while at the register but may need to stand and move while stocking items. Just because they can’t sit down when they’re restocking doesn’t mean you get out of providing them a seat when they’re cashiering, for example. The Kilby case means that employers may no longer rely on job titles, job descriptions, or notions of what jobs should be performed standing. Rather, they must make an individualized assessment of tasks that could yield different results even within the same job title. There are some exceptions, as certain wage orders have modified seating requirements. For example, Wage Order 14, which covers agricultural occupations, only requires seating to be available when an employee is working on a machine. Analyzing Job Components Kilby really answered the key question of “Is it the job, or is it the task?”. The decision made clear what employers have to do to remain compliant with the statute. If you’re in an industry in which there are tasks associated with jobs that could be seated and they’re not, you need to analyze those. If there are duties that workers can do while seated, this option should be made available to them. This job analysis can include an examination of numerous factors, such as the frequency and duration of tasks, as well as the feasibility and practicability of providing seating. And don’t wait for an employee to ask you, because they may not ask. They may just file a lawsuit instead. For this reason, employers should be proactive in assessing the components of each position. If you conclude you’re not going to allow employees to be seated, it’s important to ensure you well document the reasons behind that decision. It’s also recommended that employers confirm in writing to the employee the basis for the decision and maintain a log of conversations as they occur so there is a documented timeline. For additional information, please call our office at (714) 799-1115 |
