Complying with California’s Suitable Seating Requirements

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP November 30, 2018

California employers may be required to provide seating for all workers—even customer-facing employees, such as cashiers, greeters and tellers—but the standard for suitable seating depends on the particular workplace's circumstances.

Employers generally want workers to look approachable and may feel that someone who is standing appears more attentive than someone who is sitting, said John Kuenstler, an attorney with Barnes & Thornburg in Los Angeles. But California employers may need to adjust their mindset on this aspect of the customer relationship, he said.

Under California wage orders, all employees must be provided with "suitable seats when the nature of the work reasonably permits a seat." Furthermore, even when the nature of the work requires standing, an adequate number of seats must be "placed in reasonable proximity to the work area," and employees must be allowed to use those seats at times when it doesn't interfere with their job duties.

It's important to note that the regulations apply to two sets of circumstances, explained Christopher Olmsted, an attorney with Ogletree Deakins in San Diego. First, employers should consider whether seating should be provided for use while the employee is performing work. Second, the employer should consider whether seating should be provided for use while employees are idle. 

Conduct an Assessment

Every employer should evaluate its workforce and determine which employees are assigned job duties that require standing at a post or in a particular work area, Olmsted said. Perhaps, for example, a machine operator is not able to perform tasks while seated.

In the retail setting, the focus is commonly on cashiers, he added. "However, because the nature of work as a cashier varies from position to position, there is no standard rule dictating whether cashiers must be provided with seating."

He noted that the amount of time spent standing is not necessarily a determining factor. Consider the work environment, the nature of the duties performed, efficiency and safety concerns, he said. 

Maybe the cashiers or greeters at a retail store aren't required to move around much and can be offered a seat, said Karin Cogbill, an attorney with Littler in San Jose. "Maybe the employer doesn't really care if workers are seated and can just update the policy."

But if employers continue to require employees to stand, they should perform an evaluation, document the reasons why and explain those reasons to employees, she added. The burden is on the employer to prove that there is no suitable seating available.

"Look at the employee's job in components as opposed to the entire day," Kuenstler said. If employees can perform one function while seated, such as working the checkout counter, then they should be able to have a seat for that task even if another task, such as stocking shelves, requires employees to stand.

Even if the job primarily requires workers to stand, employers should make seating available nearby for employees to use during downtime. For example, Kuenstler said, an employee who is stocking shelves may have a few minutes of downtime while waiting for someone to drop off more product. There should be seating available for that worker to use while waiting.

It may not be necessary to provide one seat for every scheduled worker, Olmsted said. "In some circumstances, providing a few seats in the vicinity of the work area may suffice if it is anticipated that some—but not all—workers may be idle at any given moment."

Multiple Standards

Employers should keep in mind that complying with suitable-seating requirements doesn't relieve them of their obligations under other federal and state laws. Kuenstler noted, for example, that providing a seat near the work area for an employee to use during idle time wouldn't satisfy California's rest-break requirements.

Nonexempt employees in the state are generally entitled to take an uninterrupted and paid 10-minute rest break for every four hours worked (or major fraction thereof). Suitable resting facilities must be provided in an area that is separate from bathrooms and available to employees during their work hours.

[SHRM members-only HR Q&A: What are the meal and rest break requirements for California employees?]

Employers may also need to provide seating as a reasonable accommodation for workers with disabilities under the Americans with Disabilities Act or the California Fair Employment and Housing Act. These laws require employers to make an individual assessment and engage in an interactive process with the worker.  

Employers should take a look at their job descriptions to determine if they need to be revised to comply with federal and state laws, Kuenstler said.

Multistate employers in particular may need to make adjustments to account for the suitable-seating standard. "A job description that requires workers to stand for eight hours a day might be fine in some states but might not work in California," he said.

It's also critical for employers to ensure that job descriptions match what workers are actually doing, he said. 



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