Lots of employees work while standing. You see them on an almost daily basis – cashiers in department stores and big box retailers, bank tellers, retail clerks, and numerous other employees performing countless jobs that, on reflection, perhaps could be performed while seated. Why are they standing? The answer, of course, is because their employers instructed them to stand while working.
For decades, there has been a provision in various California Industrial Welfare Commission Wage Orders that says, “All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” The Wage Orders have the force of law. But this provision has been all but ignored for the last 40 years. Earlier this month, though, the California Supreme Court, relying on this provision in the Wage Orders, effectively ruled that “If the tasks being performed . . . reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for” – meaning that the employer is required by law to provide a seat and permit the employee to sit while working. Kilby v. CVS Pharmacy, Inc., 2016 WL 1296101 (California Supreme Court April 4, 2016).
What’s going on? What prompted this decision after all these years?
Up until 2004, the Wage Orders could only be enforced by the California Labor Commissioner, whose office was too understaffed to properly perform its enforcement activities. So, a little over a decade ago, California enacted the Labor Code Private Attorneys General Act of 2004, better known as “PAGA.” PAGA permits employees to take on the government’s enforcement role by suing to collect penalties from employers who violate the Labor Code and the Wage Orders. PAGA allows those employees keep to 25% of the penalties, with the balance going to the State of California. And the employers can be ordered to pay the employees’ attorneys.
In the early days of the PAGA statute, most PAGA lawsuits were class actions against employers who were not paying minimum wages or overtime, misclassified their employees as exempt from overtime, or treated their workers as independent contractors rather than as employees. But, more recently, attorneys representing employees have filed PAGA lawsuits against big retailers and banks, claiming that they are violating the Wage Orders by not allowing their employees to sit while working.
Up until now, employers have been aggressively defending themselves against these lawsuits based on the failure to permit employees to sit while working. But, now that the California Supreme Court has said, in effect, that the Wage Orders mean what they say, many of these cases are likely to settle. And, more importantly for many smaller employers, the attorneys bringing these cases are likely to start turning their attention to smaller employers who require their employees to stand while doing work that could be performed while seated.
So now is a time for employers to be proactive if they have employees who work while standing. Ask yourself, can any of that work be performed while seated? Do they perform work similar to that of bank tellers or retail clerks and cashiers? Or do they perform other functions that would easily be accomplished while seated? If the answer is either yes or maybe, then now is the time to take action to comply with the Wage Orders. Otherwise, you might find yourself in a class action lawsuit, having to defend yourself against the same claims as the big banks and retailers.
Ezer Williamson Law proudly announces the addition of Robert C. Hayden as Senior Counsel.
Mr. Hayden brings with him over 37 years of legal experience and expertise in the areas of labor and employment law, as well as extensive experience in business and commercial litigation, including contract and intellectual property disputes.
Prior to joining Ezer Williamson, Mr. Hayden was a partner at RG Lawyers LLP where he practiced for over six years representing both employees and companies in employment litigation, including wage and hour class actions, wrongful termination, and employment litigation.
Prior to RG Lawyers, Mr. Hayden was a partner with K&R Law Group LLP. At K&R, Mr. Hayden created and headed the employment law group for approximately 11 years, until the firm’s dissolution. While at K&R, Mr. Hayden also worked on complex commercial, business, contract, and intellectual property litigation.
Mr. Hayden began his career in 1978 in the Labor and Employment Department of Kindel & Anderson and moved with the head of that department to Overton, Lyman & Prince to develop a Labor & employment practice at that firm. He became a partner in 1985 and left in 1989 upon the firm’s dissolution. During his time at Kindel & Anderson and Overton, Lyman & Prince, Mr. Hayden represented employers in all aspects of union organizing campaigns, unfair labor practice proceedings before the National Labor Relations Board, and state and federal litigation. Following the dissolution of Overton, Mr. Hayden spent over six years at Lewis, D’Amato, Brisbois & Bisgaard (now Lewis, Brisbois, Bisgaard & Smith), leaving as a partner in 1995 to develop the Employment Law group at K&R Law Group. While at Lewis, D’Amato, Mr. Hayden worked on a wide range of civil litigation matters, including real estate, construction, contract, and commercial disputes.
Mr. Hayden graduated from Stanford University in 1975 with a Bachelor of Science degree. He then received his legal education at University of California at Berkeley – Boalt Hall School of Law, where he was awarded a Juris Doctor degree in 1978.
To read more about Mr. Hayden, please visit his attorney page here.