California Law & Employee-Seating Requirements - Vision Law

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Don’t Sit On California’s Employee-Seating Requirement

Are you complying with California labor law’s seating requirement?

Perhaps the question surprises you. Most California wage orders require an employer to provide “suitable seats” when the “nature” of an employee’s job “reasonably permits” their use. The California Supreme Court recently clarified what each of these terms mean and what is required of California employers.

California Wage Orders Seating Requirement

Nearly all of California’s wage orders contain the following provision:

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

(B) 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.

Clear as mud, right? What is a “suitable” seat? What does “nature of the work” mean? When and how is the use of a seat “reasonably” permitted?

Recent Cases

A federal court recently asked the California Supreme Court (“Court) to answer employee-seating questions under California labor law. On April 4, 2016, the Court issued its answers, to assist the federal court with two cases:

  1. Kilby v. CVS Pharmacy, Inc.

The employee worked as a customer service representative for CVS. Her job duties rotated from operating a cash register, stocking and organizing shelves, vacuuming and other cleaning, and gathering shopping baskets. CVS did not provide seating for the employee during her shifts.

  1. Henderson v. JPMorgan Chase Bank NA

Four bank employees filed suit against JPMorgan for failure to provide seating. In addition to their teller duties, the four employees also escorted customers to deposit boxes and checked ATMs to ensure they functioned properly.

“Nature of The Work”

CVS and JPMorgan argued “nature of the work” should entail a comparison of the number of “standing” versus “seated” duties of a particular employee. If the majority of the employee’s tasks must be performed while standing, then he or she need not be provided a seat at all, according to this view.

The employees disagreed. In their view, “nature of the work” means if even one of an employee’s tasks can be performed seated, the employer is required to provide that employee a seat. In other words, every employee who has at least one job duty that can be performed while seated must be provided seating.

The Court split the difference. It answered that “nature of the work” refers to specific job duties by “location” (referring to a station or work area for a particular task). For a bank teller, for example, a California court will look at the teller’s duties (accepting and dispensing money, data entry, walking to deposit boxes, etc.) and decide which, if any, of those tasks can feasibly be performed while seated. The Court explained it is an employee’s actual job duties that matter, not his or her title or job description. An employee may be entitled to a seat while performing one job assignment but not when performing a different, “standing” one.

“Reasonably Permits”

The Court instructed lower courts to review and weigh relevant factors when ruling on seating claims. If an employee files a seat-related claim under California law, a court will consider factors such as:

  • Job duties – Employee work duties are an important factor. If a task or assignment can be performed by a seated employee, an employer may face a high burden in explaining why seats were not provided.
  • Feasibility of seating – Is seating feasible? A court might analyze whether providing a seat at a particular station or area would interfere with performance of the employee’s other duties. A court might also consider whether seats unreasonably affect employee effectiveness and performance.
  • Business judgment – An employer’s business judgment may be given weight. Business judgment includes, for example, a hotel operator requiring its entrance employees to stand at all times, to greet customers. The California Supreme Court clarified that employer judgment is at most one factor for analysis, not the
  • Physical Layout – The layout of a workplace may be a factor. A court may consider space limitations and other practical issues in deciding an employer’s seating obligations.

“Suitable” Seating

CVS and JPMorgan argued that the plaintiffs must prove “suitable” seats actually exist in order to succeed on their claim. The Court answered in the reverse. Any employer who asserts no suitable seat exists has the burden of proof. For example, an employer who asserts that seating is impossible due to a small work area would have to prove it.


An employee who works a “standing” job is nonetheless entitled to suitable seating during lulls in operation. Employers must provide “adequate” numbers of seats in “reasonable proximity,” and allow employees to sit during downtime.

The Takeaway

Check the wage order that applies to your business. If the “Seats” provision is included, the recent California Supreme Court answers apply to your company. If you currently do not provide seats to some employees, consider doing so. Think about their specific job duties and whether they can be performed while seated. If there’s any doubt, think seriously about providing seating.

Keep in mind that job titles are less important than your employees actually do. Remember that one station or assignment area may obligate you to provide seating, while another does not (both of which might be performed by the same employee).

If you have questions, consult an experienced and knowledgeable employment law attorney. Employee seating may seem trivial, but the California Supreme Court felt it was worth addressing the issue. You can be sure that plaintiffs’ lawyers have read the answers and are looking for opportunities to file claims.

Attorney Scott Shibayama has been advocating for California businesses for nearly 30 years. Based in Sacramento, he helps small business employers avoid lawsuits and litigation.

Attorney Shibayama now wants to make sure every business owner and employer can protect themselves by sharing insights learned defending Fortune 500 companies.

Connect with his firm, Vision Law, to stay updated on the latest developments in California Employment Law and gain valuable insights needed to prevent vulnerabilities or employee litigation.

Call For A Free Consultation - (855) 534-1490.

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