Standing all day at work can be a real pain – literally. If you have to stand all day, you are at risk of developing a range of chronic injuries, including plantar fasciitis, knee arthritis, and varicose veins. Eventually, these injuries can ripen into disabilities, preventing you from standing – or working. Of course, you can stretch your muscles to relieve the discomfort, but if customers are waiting in line, you might end up standing elsewhere – the unemployment line. If you’re on your feet all day, pull up a chair and read this article. California law requires employers to provide all employees, whether or not they’re working, with “suitable seating.” If an employer fails to comply, an employee can put him on the hot seat with a suit for unsuitable seating.
When Does the Law Require Suitable Seating for Working Employees?
The Industrial Welfare Commission’s Wage Orders require an employer to provide all working employees with “suitable seating” when the nature of their work “reasonably permits” the use of seats.1 For some employees – receptionists, seamstresses, software engineers – the nature their work not only reasonably permits, but requires, the use of seats. But some jobs fall into a gray area. In those cases, courts have held that an employer’s business judgment at least partly determines whether the nature of an employee’s job “reasonably permits” the use of seats. Thus, one court concluded that Kmart’s desire that its cashiers project a “ready-to-assist” attitude to customers waiting in line was a “genuine customer-service rationale” for requiring its cashiers to stand.2
On the other hand, just because the nature of an employee’s work doesn’t reasonably permit the use of a Lazy Boy chair while he’s working doesn’t mean he must continuously stand at attention for eight hours a day. Desk chairs aren’t the only kind of “seats.” In the retail environment, an employer might have to bolt adjustable-height “lean stools” into the floor behind the counter so that cashiers can lean when they perform certain tasks. The lean stool allows a cashier to place most of her weight on a supported seat while she remains in a more upright position and projects a “ready-to-assist” attitude.3 In the process, the employer can drastically reduce the number of workers’ compensation claims for plantar fasciitis, shin splints, and other cumulative traumas. That’s a win-win for everyone.
When Does the Law Require Suitable Seating for Non-Working Employees?
Even when the nature of an employee’s work prevents him from using a lean stool, his employer might yet find himself on the hot seat. That’s because the Wage Orders also entitle an employee to suitable seating when: (1) he isn’t engaged in the “active duties” of his employment; and (2) sitting down wouldn’t interfere with the performance of those duties.4 For example, the job of a department store sales associate requires her to stand at all times while she performs her duties – folding shirts, approaching customers, opening dressing rooms, etc. She can’t move around the store on a swivel chair. But that doesn’t mean her job requires her to continuously perform her duties. So when business is slow, she must have a suitable place to sit.
But an employer can’t just tell an employee to go play on a swing at the park across the street. The Wage Orders require the employer to place the seats in “reasonable proximity” to the work area – hence the reason Nordstrom now has high stools behind the counter.5 But even seats that are only a few feet from the work area and allow the employee to make a speedy return to the cash register don’t necessarily comply with the “suitable seating” requirement. The Wage Orders require that an employer provide “[s]uitable resting facilities…in an area separate from the toilet rooms” and make those facilities “available to employees during work hours.”6 In other words, the Wage Orders imply that a toilet seat, though suitable and a seat, isn’t a “suitable seat.”