Under the wage orders issued by California’s Industrial Welfare Commission (IWC), “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Although California has required seating in certain circumstances since 1911, no definitive interpretation of the language “suitable seats,” “nature of the work” or “reasonably permits” existed until 2016, when the California Supreme Court decided Kilby v. CVS Pharmacy, Inc. In Kilby, the court set the boundaries for determining when employees are entitled to a seat. Perhaps because the court so clearly stated the law, or perhaps because the court signaled the viability of “suitable seats” cases, a number of high-dollar settlements for “suitable seats” violations have followed the Kilby decision.
This alert discusses these settlements, beginning first with Kilby, outlining the parameters of the “suitable seats” requirement. One notable settlement following Kilby includes the recent settlement between Safeway grocery stores and more than 30,000 of its cashiers in Sharp v. Safeway Inc. These settlements suggest that employers should reexamine their seating policies to ensure compliance.
Kilby v. CVS Pharmacy, Inc.In Kilby, the California Supreme Court interpreted wage orders 4 and 7, both of which provide that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Regarding this language, the Ninth Circuit certified three questions to the Supreme Court of California:
(1) Does the phrase “nature of the work” refer to individual tasks performed throughout the workday, or to the entire range of an employee’s duties performed during a given day or shift?
(2) When determining whether the nature of the work “reasonably permits” use of a seat, what factors should courts consider? Specifically, are an employer’s business judgment, the physical layout of the workplace, and the characteristics of a specific employee relevant factors?
(3) If an employer has not provided any seat, must a plaintiff prove a suitable seat is available in order to show the employer has violated the seating provision?
The California Supreme Court gave the following answers:
(1) The “nature of the work” refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a “holistic” consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift. If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for.
(2) Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances. An employer's business judgment and the physical layout of the workplace are relevant but not dispositive factors. The inquiry focuses on the nature of the work, not an individual employee’s characteristics.
(3) The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.
In sum, an employer attempting to determine whether an employee is entitled to a seat must take the following steps. First, the employer must look to the employee’s “tasks grouped by their location” and “whether it is feasible for an employee to perform each set of location-specific tasks while seated.” Then, after the employer has identified this location-specific task, he or she must consider the totality of the circumstances to decide whether the nature of that task “reasonably permits” the use of a seat. Notably, while an employer’s business judgment that certain tasks are best performed while standing is relevant, that same business judgment “does not allow employers unlimited ability to arbitrarily define certain tasks as ‘standing’ ones.” And finally, if the nature of the work does reasonably permit the employee to use a seat, the employer must provide one.
Notable “Suitable Seats” Settlements
In June 2011, Eva Sharp individually and in a representative capacity alleged that Safeway failed to provide suitable seating for her and other cashiers who worked in Safeway grocery stores throughout California. Sharp and Safeway litigated their suit for eight years, during which the Supreme Court of California handed down Kilby. Finally, in October 2019, the parties reached a settlement and the court approved it.
Under the terms of the settlement, Sharp herself will receive $14,000, Sharp’s counsel will receive $4.2 million in fees and $185,443 for litigation costs, the State of California will receive $5.6 million, and the remaining $1.875 million will be divided among 30,182 grocery store cashiers. Safeway also agreed to provide seating for these cashiers for two years.
The Safeway settlement is not an outlier. In October 2016, Bank of America entered into a $15 million settlement with its California tellers, who alleged that the area behind their counters contained sufficient space for a stool and that their work reasonably permitted the use of such seating. A few years later in July 2018, Target settled an alleged “suitable seats” violation with over 90,000 of its cashiers for $9 million.
Next Steps for Employers and “Suitable Seats” Violations
As these settlements make clear, “suitable seats” violations are viable claims and can result in enormous damages. One reason for this high price tag is the plaintiff’s ability to bring the suit under the Private Attorneys General Act, which allows for representative actions without the class certification requirements of Rule 23. This lower procedural threshold helps contribute to higher numbers of plaintiffs, as evidenced by the 30,182 grocery store cashiers participating in the Safeway settlement and the more than 90,000 cashiers in the Target settlement.
It is likely that these prominent settlements, with lower procedural bars and higher damages, will result in increased attention from the plaintiffs’ bar. If these incentives were not enough, the courts seem amenable to granting large attorney’s fees to plaintiffs’ counsel—in the Target settlement, the court awarded plaintiffs’ counsel 40% of the settlement in fees, or roughly $3.9 million of the $9 million, and in Safeway, the court awarded 35%, granting plaintiffs’ counsel $4.2 million of the $12 million settlement.
Given the high damages and the increasing prominence of these “suitable seating” claims, prudent employers should revisit any seating or standing policies currently in place.