Suitable Seating: Totality of the Circumstances Inquiry

The California Supreme Court’s 2016 opinion on suitable seating requirements provided clarity regarding the factors that should be considered when evaluating an employer’s compliance. Elizabeth Arnold and Chester Hanvey review the opinion and discuss factors that are relevant to the Totality of the Circumstances inquiry. In this paper, they present scientifically sound methods that help to generate valid and reliable data for an objective evaluation of the relevant factors.

In recent years, many employers in the retail industry have been confronted with litigation filed by current or former employees claiming that they should be provided a seat while performing various aspects of their jobs. The basis for these lawsuits is the language within the State of California Industrial Welfare Commission’s Orders Regulating Wages, Hours and Working Conditions (hereinafter “Wage Orders”), mandating that employers must provide suitable seats to employees when the nature of the work reasonably permits.

Specifically, the Wage Orders state:

1. All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.
2. 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.

Though these provisions have existed in the Wage Orders for decades, they were rarely enforced by the state or even discussed. This began to change in 2004 when the State of California enacted the Private Attorneys General Act (PAGA). Among other things, PAGA provides employees the power to sue their employers on behalf of themselves, other employees, and the State of California for violations of the Labor Code.

The suitable seating provisions within the Wage Orders creates significant exposure for many employers. In particular, the retail industry has been the target of the majority of these lawsuits because providing seats to retail employees is not a common practice. The legal question then becomes: Does the nature of the work reasonably permit the use of seats?

The answer to this question can be challenging for two primary reasons. First, the Wage Orders do not clearly specify which factors should be considered and measured when evaluating suitable seating. Second, an evaluation of these factors requires detailed and precise measurement of several aspects of the work environment. The California Supreme Court recently helped address the first challenge by providing a detailed opinion offering much-needed clarity around factors that should be considered when evaluating the “nature of the work.” In this paper, we address the second challenge by describing scientifically based methods that can be designed to collect the type of data to address each relevant factor.