Most California Industrial Welfare Commission (IWC) wage orders state that employees “shall be provided with suitable seating when the nature of the work reasonably permits the use of seating.” The California Court of Appeals’ new decision in Meda v. Autozone, Inc. discusses what an employer must do to be deemed to have “provided” the required seats, and the considerations in making such a determination. While the question may become fact-specific, an employer must expressly inform employees that they may use a seat if a job allows them to do so and make seating available for use in the employee’s area.
California Proper Seating Requirement
Fourteen of the 17 CBI salary orders (Nos. 1 through 13 and 15) have the seat requirement cited above. They also demand that[w]When employees are not engaged in the active duties of their employment and the nature of the work requires them to be standing, a sufficient number of suitable seats must be placed within reasonable proximity of the work area, and employees must be allowed to use these seats when they do not. not interfere with the performance of their duties. »
Wages (Agricultural Occupations) Ordinance No. 14 requires suitable seating for “employees working on or in front of machinery” and where “the nature of the work reasonably permits the use of seating”. Wages Ordinance No. 16 (Certain On-Site Occupations in the Construction, Drilling, Logging and Mining Industries) requires seats for employees”[w]where practicable and in accordance with applicable industry-wide standards” and “when the nature of the process and the work performed reasonably permit the use of seating”. Wage Order No. 17 (Miscellaneous Employees) does not require seating.
Section 1198 of the Labor Code prohibits employing a person under conditions contrary to a wages ordinance. In recent years, numerous lawsuits have sought civil penalties under the Private Attorneys General Act (PAGA) of the California Labor Code for alleged violations of the seating provisions of wage orders. The lawsuits have focused primarily on the retail and banking sectors, but many employers could face these claims. The potential civil penalties are $100 per injured employee per pay period for an initial violation and $200 per injured employee per pay period for a subsequent violation.
In Kilby v CVS Pharmacy, Inc., 63 Cal.4th 1 (2016), the California Supreme Court ruled when the “nature of the job” gives rise to the duty to provide seating. ArentFox Schiff’s alert on this decision can be found here. Further review the investment rules, Meda examined the steps an employer must take to have seats “provided” when needed. This is the first published opinion from a California state court to do so.
Seats somewhere, but employees are not clearly informed available
Meda involved a salesperson at an auto parts store. She worked at the parts counter and manned the cash register at the cash desk. She estimated that all cashier duties could be done while seated and half the time at the coin workstation. The company had two elevated chairs in the store, which were typically used at two elevated workstations in or near the manager’s workstation area. The manager often used one of the chairs at one of the workstations.
The employee used one of the raised chairs in the cash desk for two days as an accommodation for an injured foot. She believed that employees could only use the chairs for accommodation purposes. She never asked permission to use them otherwise. No one in the store ever told her that she was allowed or prohibited from using the chairs at her workstations.
Employment maintained that it was its policy to make a seat available to any employee who needed or wanted to use one. A memo instructed store managers to ensure that each store had two stools that could be placed near the manager’s desk, at the sales desk, or at the end of the cashier’s workstation. Significantly, the company did not provide training on its seating policy. The company also did not include the policy in its employee handbook.
After resigning, the employee sued under the PAGA, claiming the company should have provided proper seating at the cashier and parts counter workstations. Although the employer maintained that the employee knew that seats were available, she insisted that it only provided seats as a disability accommodation. The Los Angeles District Court granted summary judgment to the employer without a trial. He held that ‘provide’ as used in the wages order means ‘make available’, with the former employee unable to prove that the company had not made places available on the above facts. The Court of Appeal reversed, finding contentious issues requiring a trial.
How to determine if an employer has provided seating
The wage ordinances do not define “provide” with respect to seats.
Applying dictionary definitions, the Court of Appeal held that “to provide” generally means “to make available to”. In turn, “available” means “present or ready for immediate use”.
To meet this standard, an employer “may provide suitable seating for an employee by placing a seat at the employee’s workstation, as is commonly done in an office.” The Meda The court ruled that it was not necessary to consider whether an employer must place a seat at each workstation involving work that can be done in a seated position, which “is not always feasible given the characteristics specific to a workplace. Yet he concluded that when an employer fails to place a seat at a workstation, “the inquiry into whether a seat has been ‘provided’ to the employee may become factual.”
The Court of Appeal recognized that “every workplace is different,” a “variety of factors” that can affect how an employer can “provide” seating at a particular workstation. For example, courts may consider the nature of an employee’s job responsibilities, the frequency with which an employee changes jobs, the physical layout, the frequency with which an employee changes jobs, the number of employees sharing a workstation and the extent to which a seat may interfere with work. or cause congestion (or safety hazards).
In Meda, the court found that the conflicts in the evidence — or the way it was viewed — required the claim to be resolved at trial. Among the significant points, the court noted that, although the employer had chairs in the store, they were not at or near the workstations in question. Employees should leave workstations and move a chair to these locations. The court held that “the proximity of a seat to an employee’s workstation is a relevant factor to consider in determining whether a seat has been provided for the employee’s use”. The court pointed out that this factor is particularly important where an employer “has not informed its employees that seats are available for their use, either by notifying employees directly or by including the seating policy in its manual of the employee”.
Further, since the raised chairs were at other workstations and the manager used them often, the court found that “a reasonable inference” could be drawn that the chairs were not provided to be used at other workstations. He added that placing chairs in other areas could be seen as discouraging their use at checkout and parts counters, with employees possibly feeling uncomfortable taking a chair from the manager’s area. Finally, the fact that no other employee uses a raised chair at these workstations suggests that the company has prohibited or discouraged the use of chairs at this location except as an accommodation for the disabled.
Takeaways for employers
As the first decision released in California to address considerations for determining whether an employer has provided seating, Meda is a remarkable decision. In many types of work, as the ruling is recognized, an employer can satisfy the requirement for proper seating by placing a seat at an employee’s workstation. In other situations permitting an employee to use seats, the employer must expressly inform employees that they may use seats. Employers must inform employees through employee handbooks and other written communications, as well as verbally. A take-out meal Meda is that this notice must be in a form that actually reaches the employees. Employers should also cover seating in training.
In addition to notifying employees, employers provide nearby seating or inform employees that seating in other areas is available and can be moved. Given California’s express seating requirements in wage orders, employers and employees should understand that seating is not just something that employees must provide as a disability accommodation.
California’s placement rules have resulted in numerous lawsuits under the PAGA for civil penalties. To comply with the law and avoid potential liability, California employers must take proactive steps to comply. Issues related to determining whether the nature of a particular job permits the use of seating, how an employer can comply with the provision of seating, which seating may be suitable, and how many seating may be required can be complicated. Employers may wish to consult a lawyer on how to comply – but they should not sit idly by.