Why Make Employees Stand All Day?

sohnen_harvey_webMaking employees stand all day can have harmful health consequences, but many employers continue to refuse to allow employees to sit down to perform any of their duties.

The California Supreme Court has recently been called on to interpret state regulations concerning a requirement that employers provide employees suitable seats when the nature of the work reasonably permits use of seats. At stake is whether employers can force employees to stand throughout their shifts when some or all of the tasks could be performed while sitting.

The regulations in question are contained in Industrial Welfare Commission (IWC) Wage Orders, seen posted on the walls of many workplaces, which regulate the wages, hours and working conditions of most California employees. There are 17 such Wage Orders. Section 14(A) of each of the Wage Orders provides:

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

Although the requirement of seating is not new, enactment of the Private Attorney General Act of 2004
(PAGA), Labor Code section 2698 et seq., enabled private litigants for the first time to enforce the law. They can do this through representative actions (and class actions), with the plaintiff/employee standing in the shoes of the state of California to enforce the law.

vintage_employee_standing_webThe first major employee victory in this area came in 2010 in Bright v. 99 Cents Only Stores, 189 Cal. App. 4th 1472. Bright was a seating claim brought as a class action by cashiers at retail stores who were to stand for their entire shift at their registers. The trial court dismissed the suitable seating claim. The employees appealed and the California Court of Appeal, 2nd District, gave employees the green light to bring suitable seating claims under PAGA and seek penalties under that law.

The penalties are $100 per pay period for each aggrieved employee for the initial violation. In the case of a subsequent violation, the penalties go from $100 to $200. Seventy-five percent of the penalties go to the state, for whom the action is brought, and 25 percent to the employees. A successful plaintiff can also recover an award of attorney’s fees.

The first suitable seating class action to go to trial was Garvey v. Kmart Corporation, U.S.D.C., Northern District of California, in 2012. It resulted in a decision in the employer’s favor. The court found a legitimate basis for requiring employees to stand because they had to convey a “ready-to-assist” attitude to customers, consistent with the company’s goal of projecting the appearance of efficient service.

Surprisingly, the court criticized the stools that plaintiffs had proposed, and commented that if “lean
stools” had been proposed, the case might have gone the other way. If nothing else, Garvey led lawyers on a hunt for furniture catalogs to figure out that a lean stool seems to be a cross between a step ladder and a bar stool.

Notwithstanding this odd result, there has been a steady stream of seating cases, in many cases against
retail stores, where cashiers stand all day, and against those banks that require tellers to stand unremittingly at the counter.

This author’s firm, the Law Offices of Sohnen & Kelly, was counsel for the plaintiffs in Brooks v. U.S. Bank, a case for supermarket branch tellers of U.S. Bank, in which claims for seating and rest breaks settled for $1.9 million in 2014. Also in 2014, Gallardo v. AT&T Mobility was settled for retail sales staff for $1,050,000. In 2011, Church v. GameStop was settled for video game retail store employees for $750,000.

In 2013, the 9th Circuit Court of Appeals was confronted with issues about what the suitable seating
mandate means in Kilby v. CVS and Henderson v. JP Morgan Chase Bank, pending class action. Kilby involves cashiers at CVS Pharmacy, with Wage Order 7 applicable. Henderson involves tellers at JPMorgan Chase Bank, with the same language of Wage Order 4 applicable. The 9th Circuit requested that the California Supreme Court answer three questions about these provisions. In 2014, the California Court accepted the request (Case S215614).

The three questions in Kilby and Henderson are:

For purposes of IWC Wage Order 4-2001 § 14(A) and IWC Wage Order 7-2001 § 14(A),
“(1) Does the phrase ‘nature of the work’ refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work’ holistically and evaluate the entire range of an employee’s duties? (a) If the courts should construe ‘nature of the work’ holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?

“(2) When determining whether the nature of the work ‘reasonably permits’ the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?

“(3) If an employer has not provided any seat, does a plaintiff need to prove what would constitute ‘suitable seats’ to show the employer has violated Section 14(A)?”

The first question addresses a reality of many jobs—some tasks can be performed sitting while others may require standing. For example, even for the most sedentary of secretarial jobs, the employee will have to go across the room occasionally to take papers out of a printer or obtain a file. So what proportion of the tasks need to be “sitting” tasks before the suitable seating requirement is triggered?

The second question mixes three separate points. One can be assured that any employer who makes its employees stand without letup will have some justification ready—such as “customer perception.” What weight is to be given to these employer justifications for requiring standing? The physical layout of the workplace raises a cost issue. If the employer has designed its space so that there is no room for sitting, can the cost of modification justify not providing seats?

Finally, should seating standards be determined on a one-size-fits-all basis, or should they be tailored to who is actually in the job? For example, can employers make judgments about which employees are most and least in need of seating by virtue of age and physical characteristics?

The third question seems to be an echo of the curious “lean stool” twist in Garvey. For an employee to prevail, does he or she have a burden to find the right chair or stool in a furniture catalog?

The answers to these questions will have a significant effect on the California workplace. The United States and California Chambers of Commerce and AARP have filed amicus briefs in Kilby and Henderson. As noted by AARP, while prolonged standing is associated with the development of musculoskeletal disorders in workers of all ages, it can be particularly difficult for some older workers, which is the nation’s fastest growing segment of the working population. So why are employers so resistant to allowing employees to sit?

While no date has yet been set for oral argument of Kilby and Henderson, an announcement of that argument may well occur very soon. The decision will let us know where California workers stand—or sit.

Harvey Sohnen is co-editor of the Contra Costa Lawyer magazine. He is a principal in the Law Offices of Sohnen & Kelly in Orinda, where the focus of his practice is wage and hour law class actions, and other employment and commercial cases.

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