?Takeaway: A court’s inquiry into whether an employer has provided suitable seating to employees should be fact-intensive and involve a multitude of job- and workplace-specific factors.
?In California, an employee is entitled to use a seat while working, if the nature of the work reasonably permits the use of a seat. In that circumstance, an employer is required to provide the employee with a suitable seat.
An appellate court considered for the first time what steps an employer should take to provide suitable seating within the meaning of the seating requirement. It concluded that where an employer has not expressly advised its employees that they may use a seat during their work and has not provided a seat at a workstation, the inquiry as to whether an employer has provided suitable seating may be fact-intensive and may involve a multitude of job- and workplace-specific factors.
A former sales associate at an auto parts store sued the company that operated the store, asserting one claim under the Private Attorneys General Act (PAGA). She alleged that the store failed to provide suitable seating to employees at the cashier and parts counter workstations, where some or all of the work could be performed while sitting.
The company sought to have the case dismissed before trial, arguing that the former employee could not bring a representative action under PAGA because she was not aggrieved by the seating policy. Specifically, the company claimed that it satisfied the seating requirement by making two chairs available to its associates. The chairs were not placed at the cashier or parts counter workstations but were in or just outside the manager’s office.
The employee argued that the store did not provide seating as required because no one told her chairs were available for use at the front counter workstations, she never saw anyone else use a chair at those workstations and she was only given the option to use a chair as an accommodation after an on-the-job injury.
The trial court agreed with the company and dismissed the lawsuit. The employee appealed.
No Chairs at Workstations
The employee worked part time as a sales associate at the store from Nov. 8, 2016, until she resigned on April 18, 2017. She assisted customers at the parts counter by answering questions and locating parts. She also operated the cash register, cleaned the store, moved merchandise around the store and stocked shelves.
The employee estimated that in the normal course of her work, she spent approximately 40 percent of her time at the cashier station and stated that she could do all cashier tasks while seated. In addition, she estimated that she spent another 40 percent of her time at the parts counter and that roughly half of the work required at that workstation could be performed while seated.
Both the parts counter and the cashier workstations were located at elevated counters. According to the employee, a desk-height chair would be too low to use at the elevated counters. Instead, a raised chair or stool was needed at those workstations. Per company policy, the store had two raised chairs onsite, and they were generally located and used at two raised workstations in or near the manager’s station. That area did not have a door but was separate and not visible from the cashier and parts counter workstations. The employee observed that the manager often used a raised chair at one of the workstations near the manager’s office.
The employee used one of the raised chairs at the cashier workstation for two days as a disability accommodation after she injured her foot, but she believed those chairs were only available as an accommodation.
No one at the store told the employee that she either was allowed to or prohibited from using a raised chair at the front counter workstations, and she never asked for permission to do so. The employee never saw other employees use a seat at the cashier or parts counter workstations.
The company’s stated policy was to make a stool available for any employee who needed or desired to use one, but it did not offer training regarding its seating policy, and the policy was not included in the employee handbook.
Meaning of ‘Provide’
The court first examined the language of the California wage order requiring employers to provide seats. It states that, “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats,” but does not define the word “provide.”
The trial court had observed that “provide” generally means “make available to.” “Available” typically means “present or ready for immediate use,” the appeals court said.
The appeals court concluded that where an employer does not place a seat at an employee’s workstation, the question as to whether a seat has been provided to the employee may be fact-intensive.
According to the court, relevant factors include:
- The proximity of the seat to an employee’s workstation.
- Whether the employer has advised its employees that seats are available for their use by either directly informing the workers or including the seating policy in its employee handbook.
- Whether employees used the seats.
The appellate court concluded that the trial court erred in dismissing the case before trial and sent the lawsuit back to the lower court, ruling that the lower court must consider the factors set out by the appeals court to determine whether adequate seating had been provided.
Meda v. Autozone Inc., Calif. Ct. App., No. B311398 (July 19, 2022).
Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.