The California Supreme Court has weighed in on what constitutes “suitable seating” for California employees. The ruling was offered in response to a request for guidance by the United States Ninth Circuit Court. The Ninth Circuit is weighing a case brought by retail and bank employees as a potential class action in which it is claimed employees were not provided with adequate seating by their employers.

The Supreme Court ruled that the determination of whether an employer is required to provide adequate seating turns on “consideration of the overall job duties performed at the particular location by any employee working there” not on the employee’s particular circumstances.

California’s Wage Orders require employers to provide all employees “with suitable seats when the nature of the work reasonably permits the use of seats.” The Supreme Court also adopted a “totality of the circumstances” test to assess whether a work location “reasonably permits” suitable seating.

To evaluate whether the “nature of the work” reasonably permits the use of seats, the Supreme Court instructed that employers must examine subsets of an employee’s total tasks and duties by location, such as those tasks employees perform at a retail cash register or at a bank teller window. Employers must also consider whether it is feasible for an employee to perform each set of location specific tasks while seated. Thus, an employer must provide a seat if a task at a given location reasonably permits sitting and the seat would not interfere with performance of any other tasks that may require standing.

Whether the location “reasonably permits” seating requires an objective inquiry of the totality of the circumstances and takes into account an employer’s reasonable expectations. The physical layout of the workspace may be relevant but is not necessarily dispositive. The employer bears the burden of showing that compliance is not feasible because no suitable seating exists.

The Supreme Court was critical of denying an employee a seat “when he spends a substantial part of his workday at a single location, merely because his job duties include other tasks that must be done standing.” Therefore, before an employer decides not to supply an employee with a chair, check with your legal counsel and evaluate whether the risk of not providing a chair outweighs the cost of providing one. With a totality of the circumstances test the tide has turned in favor of giving employees seats whenever possible.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.