In January of 2014, the Ninth Circuit requested input from the California Supreme Court regarding California’s “suitable seating” requirements found in Section 14 of most IWC Wage Orders. The question comes from a pair of appeals, one on behalf of CVS cashiers and the other on behalf of JPMorgan bank tellers, each alleging violations of Section 14.  According to the Ninth Circuit, interpretation of Section 14 may have a “dramatic impact” for California, and therefore “its interpretation should be left to the California Supreme Court.”  On Tuesday, January 5, the California Court finally heard arguments on the matter.

Wage Orders regulate wages, hours and working conditions for nonexempt employees. Section 14 of nearly all Wage Orders (like this one [pdf]) states that employees “shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”  If an employee’s duties require standing, the employer must provide “suitable seats…in reasonable proximity to the work area,” and allow employees to use the seats when it does not interfere with the performance of their duties.

Seems simple enough, but the language just didn’t sit well with the federal appeals court. In its request for guidance, the Ninth Circuit presented three questions for clarification:  (1) should the nature of an employee’s work be considered holistically or assessed for each individual task; (2) should courts consider an employer’s business judgment as to whether an employee should stand, the physical layout of the workplace, or the physical characteristics of the employee; and (3) does an employee need to show what a “suitable seat” would be in order to bring a claim?  CVS and JPMorgan argued for a holistic approach, with greater weight given to an employer’s business judgment.  The plaintiffs argued that seating is a minimum labor requirement, akin to meal and rest breaks, and pushed for a task-based analysis as opposed to the holistic approach.

Interpretation of Section 14 may have a significant impact in California. Depending on how the court defines the seating requirements, employers from a wide range of industries, including retail, service and manufacturing, may ultimately be required to find and provide suitable seats. Employers may also be exposed to increased litigation, seeking substantial civil penalties under the Labor Code.  Nevertheless, all sides agree that definitive guidance on Section 14 is important in clarifying an ambiguous aspect of the law.  Employers and employees are both on the edge of their seats waiting for the court’s decision which must be issued within 90 days of oral argument.