California's Wage Orders and the Overlooked Seating Rule.

California has 17 Wage Orders each of which applies to one or more industries. 16 of the 17 Wage Orders require California employers to provide their employees with "suitable seating." The seating rules, which vary slightly depending on the Wage Order, basically require the employer: (1) to provide all employees with "suitable seats" when the nature of the work permits the use of seats; and (2) where the nature of the work does not reasonably lend itself to sitting, the employer must provide an adequate number of seats in close proximately to the work area for use by the employees when it does not interfere with the performance of their duties.

California employers should beware that the seating rules are not limited to retail employers— they apply to almost every employer in California, excluding the agricultural industry and some employer's in the construction, drilling, logging, and mining industries. Each business in California falls under at least one Wage Order, each of which prescribes the minimum working conditions for particular industries and occupations. Employers must ascertain which Wage Order applies to them, post a copy of that Wage Order in the workplace, and follow its provisions. The Industrial Welfare Commission's Wage Orders can be found at: http://www.dir.ca.gov/iwc/wageorderindustries.htm.

Civil Penalties For Failing To Provide Your Employees with a Seat.

While the Wage Orders promulgated by the Industrial Welfare Commission do not in themselves provide for a civil penalty, or remedy, for failing to supply "suitable seating" pursuant to California's Wage Orders, the Courts of Appeal in both Bright and Harris held that California Labor Code §2699 permits the aggrieved employee to file a claim pursuant to the Private Attorney Generals Act of 2004 (PAGA) and California Labor Code §§1198 and 2699(f). Under PAGA, the civil penalty is $100 for each aggrieved employee per pay period for the initial violation, and $200 for each aggrieved employee per pay period for each subsequent violation for the 12 months prior to filing a lawsuit, plus attorneys fees and costs (Cal. Lab. Code § 2699(f)(2)).

A violation for one employee for one year with 26 pay periods (2 times per month) could result in penalties of $5,100. If the employer has just 10 employees paid twice monthly, the penalties would accrue to a staggering $52,000 plus attorney's fees and costs.

What California Employers Should Do Now.

California employers should immediately: (1) find and review the Wage Order applicable to their industry; (2) analyze their protocols to determine if there are any violations; and (3) review the job duties of each of their employees to determine whether or not presently standing employees could in fact be provided a chair. If the employer's review reveals any violations, correct them immediately and if your sales associates and cashiers can be provided with a chair, provide it now.

Although the abovementioned cases specifically applied to retailers for failing to provide their cashiers with suitable seating in violation of Wage Order No. 7, California employers should be aware that the "suitable seating" requirements apply to many and most other industries. Employers should also know that the California Chamber of Commerce is asking the California Supreme Court to review the rulings in the abovementioned cases to stem the flow of these types of class action lawsuits.