California’s Suitable Seating Law: A Task-Based Requirement

California’s Suitable Seating Law, codified in the state’s wage orders, requires employers to provide workers with the ability to sit when the job allows for it. The state, often at the forefront of employee rights, intended the legislation to make the work experience more comfortable for workers. 

In short, the law says that “if it’s feasible and practical to provide seating, you must,” said Joseph Beachboard, an attorney with Beachboard Consulting Group in Torrance, Calif. At present, “a lot of people have kind of figured it out” in the affected industries.

Customer Service Culture 

However, litigation was far more common in the years following the statute’s implementation in 2001. According to Jennifer Shaw, an attorney with Shaw Law Group in Sacramento, Calif., employers incorrectly assumed they held the deciding vote of whether an employee could sit down or not. Employers also thought employees had to have a disability to qualify for the seating provision.  

Most of the resistance to the suitable seating requirement came not from manufacturers, where people might be sitting in a factory setting, but from customer-facing industries. Early in the debate, grocery stores, retail establishments, banks, and restaurants were among the most vociferous opponents.

“It really has to do with our historical perspective and belief that when someone is standing, they are better able to interact with a customer,” Beachboard said. “Most commonly, it doesn’t have anything to do with the job” itself, but the traditional notion that ideal customer service involves standing at attention. 

Kilby v. CVS Pharmacy Inc.  

The Suitable Seating Law is a mere one or two sentences in the wage orders. Due to its brevity, litigation has been necessary to iron out the details. One of the biggest questions the law raised was whether employers could “basically say, ‘This job doesn’t allow you to sit down’ ” due to its nature, Beachboard explained.  

In Kilby v. CVS Pharmacy, Inc. (2016), the California Supreme Court ruled this interpretation too broad. In line with the court’s decision, employers have to “break [a job] into its parts” and determine whether each duty can be performed while seated, Beachboard said. The case thus established that suitable seating is “task-specific.”

In a grocery store, for instance, a worker can be seated while at the register but may need to stand and move while stocking items. “Just because they can’t sit down when they’re restocking doesn’t mean you get out of providing them a seat when they’re cashiering,” Beachboard said.  

The Kilby case means that “employers may no longer rely on job titles, job descriptions, or notions of what jobs should be performed standing,” Shaw said. Rather, they must make an individualized assessment of tasks that could “yield different results even within the same job title.” 

There are some exceptions, as certain wage orders have modified seating requirements. As Shaw pointed out, Wage Order 14, which covers agricultural occupations, only requires seating to be available when an employee is working on a machine.  

Analyzing Job Components 

Since 2016, the issue of suitable seating has been relatively settled. “Kilby really answered the key question, which was: Is it the job, or is it the task?” Beachboard said. He added that the decision made it clear what employers have to do to remain compliant with the statute.  

“If you’re in an industry in which there are tasks associated with jobs that could be seated and they’re not, you need to analyze those,” Beachboard explained. If there are duties that workers can do while seated, this option should be made available to them. 

This job analysis “can include an examination of numerous factors,” Shaw said, “such as the frequency and duration of tasks, as well as the feasibility and practicability of providing seating.”

“I wouldn’t wait for [an employee] to ask you, because they may not ask you,” Beachboard said. “They may just file a lawsuit against you.”  

For this reason, employers should be proactive in assessing the components of each position.  

“If you conclude you’re not going to allow employees to be seated,” it’s important “to make sure that you well document” the reasons behind that decision, Beachboard said.  

Shaw also emphasized the importance of documentation, recommending that employers confirm “in writing to the employee the basis for the decision and maintain a log of conversations as they occur to ensure there is a documented timeline.”