Are you the greeter for Walmart, or a cashier at Target, Vons, Shop Rite, Walgreens, or another retail store? Perhaps you work at a theme park like Disneyland, Universal Studios, or you’re an attendant at The Hollywood Bowl. All these jobs have something in common—being on your feet all day. It’s exhausting, physically demanding, and you might even suffer from body pain while being expected to portray a pleasant demeanor for the people you serve.

Why can’t you have a chair to sit on, at least during the slower or stationary portions of your shifts? The answer is, you should be able to, and in fact, The State of California has been debating this very point for years. Sure, you get a rest period mid-day (based on details like how many hours you work), but then you’re back on your feet for the remainder of the day.

Right to Suitable Seating

California requires “suitable seating” under the Industrial Welfare Commission Wage Orders. Section 14(A) of the Wage Order states, “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats” and furthermore, in section 12(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.”

Still, employees hit roadblocks when approaching employers on “suitable seating.” Customer-facing employees like cashiers are generally expected to stand all day.

Why? Unfortunately, a standard rule dictating whether cashiers should be provided with seating is lacking. Most employers deem employees as more approachable and readily available to assist customers when standing. As a result, employers tend to keep employees standing and ready for action.

I approached my employer, and he/she said, “no.”

Perhaps your employer doesn’t see it possible for you to do your job (for example, at LEGOLAND as an admissions associate or a ride operator, or a cashier or ticket office position at a concert arena (and all the tasks your role entails) while seated. But what if you feel it is possible to do your job while seated or would like the option to sit for specific tasks? How can you claim your seat?

Bank employees and even CVS employees have filed class-action lawsuits (Kilby v. CVS Pharmacy and Henderson v. JP Morgan Chase Bank) due to injuries sustained in the workplace from prolonged standing. In the Kilby case, the court initially ruled in favor of CVS. Kilby was a customer service representative whose duties included working a cash register and performing tasks like stocking shelves and taking out the trash. The court in this instance ruled the “nature of the work” meant the entire range of the employee’s duties, and since some of the employee’s duties required standing, the “nature of the work” did not reasonably permit the use of seats as a whole.

However, Kilby appealed the ruling to the Ninth Circuit. The Supreme Court stressed that even where the “nature of the work” requires standing, this does not entirely release an employer of the obligation to provide seating.

The Supreme Court of California issued its opinion on Kilby in response to a federal appeals court’s request for guidance and direction involving interpretation of the suitable seating requirements. The court clarified employers must not dismiss requests for seating because a task is performed “briefly or infrequently”. If a work task reasonably allows sitting and provision of a seat would not interfere with performance of any other functions that may require standing, a seat is called for.

However, the ruling didn’t create a clear-cut one-size-fits-all rule on employee seating. An employer should consider duties performed by the employee; however, other factors can impact their decision; including details like workspace and the layout of the building.

How do you know if you have a viable case?

If you feel your employer has unjustly denied you the right to suitable seating, the best solution is to contact an experienced California employment law attorney.

The right attorney can evaluate your employer’s policies and actions, identifying potential legal violations. Additionally, your lawyer can inform you of your legal options and determine whether you have a viable claim. You can learn more about our firm here.

Learn More About PAGA, and Recent Settlements We Obtained for Our Clients

PAGA Settlements…