Suitable seating laws: Do not read while standing
 
Suitable seating laws: Do not read while standing
23 MAY 2017 7:12 AM

A recent court ruling regarding employers’ obligations to provide suitable seating for their workers has implications for the hotel industry. 

By  Lara Shortz  and  Kyle Klein

Picture this: a grand and bustling hotel lobby bathed in light, impeccably designed and furnished with beautiful seating areas where guests lounge and enjoy. Adjacent to the stunning lobby, and just steps from the hotel’s entrance, is the busy front desk, staffed by attentive, smartly dressed employees answering questions, checking guests into rooms and otherwise accommodating all those who approach them.

Noticeably absent from anywhere behind the front desk, however, is a place for these employees to sit. And while it is no surprise that the hotel staff is not provided with plush chairs and couches like those adorning the lobby, the lack of suitable seating could raise red flags given the California Supreme Court’s relatively recent clarification of the issue in Kilby v CVS Pharmacy. That lawsuit, brought on behalf of pharmacy cashiers and bank tellers, alleged that CVS violated certain California wage orders issued by the California Industrial Welfare Commission.

Nature of work
The court in that case interpreted the wage orders, which typically require that “all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” In doing so, the court created potential exposure to class-action litigation and Private Attorney General Act claims against employers, including those in the hotel and resort industry.

The court first determined that if tasks undertaken by an employee at any given location reasonably permit sitting, and provision of a seat would not interfere with the performance of any other tasks requiring standing, a seat should be provided. An employer’s obligation to furnish suitable seating to employees, the court ruled, must take into account the actual tasks performed, or reasonably expected to be performed—as opposed to abstract characterizations, job titles or descriptions that may or may not reflect actual work done.

What is reasonable?
Next, the court addressed when the nature of the work “reasonably permits” sitting. It found this a question to be determined objectively based on the “totality of the circumstances” —a somewhat vague test to be sure, but one that contemplates the following relevant, but not dispositive factors:

  • An employer’s business judgment;
  • the physical layout of the workplace; and
  • the nature of the work (and not an individual employee’s physical characteristics).

Surely, the totality of circumstances seem to slant toward the provision of suitable seating if employees could do their jobs sitting down and their workspace allows for it.

Burden of proof
Finally, but perhaps most notably, the court tackled the issue of burden of proof in cases in which employers are alleged to have not provided suitable seating for aggrieved employees. In such circumstances, the court concluded that employers seeking to be excused from the requirements of relevant wage orders shoulder the burden to prove that compliance is impractical because no suitable seating exists. Clearly, the findings in this case are rather pro-employee, as illustrated by the employers’ assigned burden.

The takeaway
Hoteliers should keep the issue of suitable seating squarely on their radar screens, especially in light of their vulnerability to potential representative actions on behalf of current and former employees, including class actions and PAGA claims. Be it front0desk workers, housekeepers, restaurant hosts/hostesses, security or even valet parkers, there are several categories of staff at hotels and resorts that may require suitable seating as prescribed by the court.

So what should be done? Employers in the hospitality space are encouraged to take a moment to respond to these queries:

  • Can employee tasks be accomplished sitting down?
  • Does the physical layout of a relevant workspace accommodate seating?
  • Is seating feasible in light of the physical requirements of any given job and any interference with employee tasks that seating might create?

If the answer to these questions is yes, hoteliers would be wise to provide suitable seating in accordance with existing wage orders, an undertaking that is relatively easy, cost-efficient and compliance focused. And to the extent such seating is not furnished because standing is required for a particular employment classification, reasons supporting the absence of seats should be sufficiently detailed and documented.

Without question, the court’s decision in Kilby v CVS Pharmacy opened the door for increased litigation against employers in California. Consequently, the safe bet for hotels and resorts in the state is to provide suitable seating for employees whenever feasible. Those guests in the lobby should not be the only ones able to take a load off.

Lara Shortz is a partner and experienced litigation attorney at Michelman & Robinson, LLP (M&R), a national law firm with offices in Los Angeles, Orange County, San Francisco, Chicago and New York. She represents clients in the hospitality and restaurant, food and beverage industry. More specifically, she advises management regarding employment and labor law issues, including state and federal employment acts (such as EEOC, FEHA, ADA, ADEA, WARN, etc.), hiring, firing and wage and hour compliance. She also handles executive employment contract disputes and conducts workplace training, investigations and compliance. She can be contacted at 310-564-2670 or lshortz@mrllp.com.

Kyle Klein is an associate at M&R, where he focuses his practice on counseling and litigating on behalf of employers in matters relating to discrimination, harassment, wrongful termination, reduction in workforce, hiring, wage and hour issues, misclassification, overtime and meal/rest breaks. Mr. Klein can be contacted at 310-564-2670 or kklein@mrllp.com.

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