Law Review: Are you entitled to sit on the job?
September 12, 2018
If you see the cashiers at Rite Aid sitting on the job don't be surprised. Under a recently settled class action lawsuit, Rite Aid must provide seating to its 23,000 cashiers.
Same goes for CVS Pharmacy. And some predict that most retail store cashiers will soon be entitled to sit while on the job.
Ironically, at Porter Simon, our legal assistants are asking to be able to stand (with fancy sit or stand desks). We've always done things differently.
CVS PHARMACY CASE
In 2016, we wrote about the California Supreme Court case Kilby v. CVS Pharmacy, Inc. In that landmark case and others, California Wage Order No. 7-201 was analyzed:
"All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."
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Wage Order No. 7-201 applies to the mercantile industry, including Rite Aid and CVS. Wage Order No. 4-201, which is identical, applies to professional, technical, clerical, mechanical and similar occupations. Interestingly, there are no exemptions for small businesses.
Historically CVS and practically every other retail business required employees to stand even when doing checkout and cashier duties.
In Kilby, the state Supreme Court ruled unanimously that workers are entitled to chairs if they spend a portion of the day on tasks that can reasonably be performed while sitting. That decision followed years of lawsuits involving retailers and banks. For some time now, bank tellers in California are generally able to sit while performing customer transactions.
SUPREME COURT RULING
In Kilby, the Supreme Court concluded it is relevant to look at the "totality of circumstances" to determine whether an employer must provide an employee a seat. Factors include, whether providing a seat would unduly interfere with other standing tasks, the frequency of transition from sitting to standing, the practicality of providing seating and the physical layout of the work space. The decision involves a qualitative assessment of all relevant factors. The individual's employee's physical characteristics are not a factor. The burden under the cases is on the employer to justify not providing seating.
Back to Rite Aid. Facing the 2016 Supreme Court ruling in the CVS case and another case involving JPMorgan Chase Bank, Rite Aid's lawyers elected to settle on the eve of trial and provide seating. I'm predicting that Wal-Mart stores will soon do the same if they have not already done so.
It remains to be seen how seating will be implemented in these various businesses with different floor plans in different locales especially with employees performing multiple tasks.
As a historical footnote, seating laws were originally enacted for female employees and child laborers, expanded to apply to all employees regardless of age or gender in the early 1970s.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim's practice areas include: real estate, development, construction, business, HOA's, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at firstname.lastname@example.org or http://www.portersimon.com.
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