What is the employer's duty to 'provide' seating for employees?

Under the California wage orders governing most workplaces, many employers have to provide their workers with suitable seating to use during their duties if the nature of the work reasonably permits the use of seats.⁠ If the nature of the employee’s job requires standing, they must place seats reasonably close to their work areas to be used during breaks.⁠

What should an employer do to be deemed to have “provided” required seating?

The inquiry as to whether a seat has been ‘provided’ to the employee can be fact-intensive, even where an employer makes seats available, and a variety of factors (the nature of an employee’s job responsibilities, how frequently an employee changes tasks, the physical layout, how often an employee changes tasks, the number of employees sharing a workstation, and the extent to which a seat may cause safety risks) can have an impact on the evaluation.

The proximity of a seat to an employee’s workstation is also a relevant factor, especially where an employer "has not advised its employees that seats are available for their use by either directly informing the employees or including the seating policy in its employee handbook", the Court stated.

What is the decision of the Court?

The Court, reversing the trial court’s entry of summary judgment in favour of the employer, considered that where the employer does not place a seat at the workstation, a seat’s proximity to the workspace and accessibility is relevant in the analysis of whether seats are “provided,”, particularly where the employees are not advised that seats are available in a written policy or training.

Under these circumstances, according to the Court, sufficient factual disputes preclude summary judgment regarding whether suitable seats were “provided.”

What happens in case of violation?

Even if employees generally have no right of action to recover damages for violations of the wage orders’ seating requirements, they can act against their employer under California’s Labour Code Private Attorneys General Act of 2004 (PAGA), which gives the wage orders the force of law.

Suppose an employer fails to provide suitable seating as required by law. In that case, it is subject to a civil penalty (75 per cent of the penalty must be paid to the State of California and the remaining 25 per cent to the employee).⁠

To avoid the risk of a claim for failure to provide suitable employee seating, an employer should place seating, where feasible, at or near workstations where the seating would be used. Moreover, employers should communicate the company’s seating policy to employees and offer training on the seating policy.