Labor & Employment

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On-Duty Employee Seating Poised To Be The New Class Action

May 24, 2011

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Class action attorneys appear to be shifting focus to California Wage Order provisions that require employers to offer on-duty seating to employees. After two appellate decisions in late 2010 recognized an employee's right to file a class action lawsuit for violation of these provisions, the only remaining question was when it would catch on.

The answer came quickly. In the last two weeks alone, employee class action attorneys have sued retail food giants Costco and Whole Foods over employee seating. Plaintiffs in those cases allege the right to penalties and attorneys' fees for past and present employees. Penalties alone can add up quickly: $100 per employee per pay period for an initial violation and $200 per pay period thereafter.

So what do the Wage Orders require? 
The "Seats" provision of virtually all IWC Industry Wage Orders requires employers to provide on-duty employees with "suitable seats when the nature of the work reasonably permits the use of seats." Outside the farm and construction industries (Wage Orders 13 and 16), most require that when the nature of the work requires standing and employees "are not engaged in the active duties of their employment," an "adequate number" of "suitable seats" shall be placed "in reasonable proximity to the work area" and employees "shall be permitted" to use those seats "when it does not interfere with the performance of their duties." No cases have identified what any of these phrases mean.

What can you expect and what should you do? 
What we do know is that when the language lacks clarity, there is potential for long and expensive litigation for employers. For the moment, the cases appear to be focused on the retail, hospitality and transportation industries. Even if you are not in these industries, however, consider these steps to minimize risk:

  • Review each Wage Order that applies to your industry or employees to determine which positions might be entitled to on-duty seating;
  • Review job descriptions to determine whether on-duty seating would interfere with the performance of an employee's duties;
  • Review policies and practices relating to on-duty employees and determine whether they allow employees to sit while on-duty;
  • Consider what types of seating might comply with the Wage Order (e.g., stool behind the counter, seat next to the valet counter) while projecting what you consider to be an appropriate image;
  • If you have questions, consult with counsel.

For more information, please contact:

Jahmal Davis

415-995-5815 Direct Phone
415-995-3489 Fax

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