We’ve been following the fate of “suitable
seating” class actions
for three years now. There was a
brief glimmer of hope in 2011 when a federal judge in LA
dismissed a class action by bank tellers because they didn’t
claim that they’d ever asked for seats. But the Ninth Circuit
Court of Appeal, finding no such requirement in the Wage Order,
reversed in an unpublished opinion.
Then in December,
we reported on Garvey v. Kmart, the first such case to
go to trial. Although the employer won, the court wondered aloud
whether the result would have been different if the plaintiffs had
requested a different type of seat – called a lean-stool. Now
that case is up on appeal, too.
So if you're waiting for clarity to emerge regarding the
requirement that "all working employees shall be provided with
suitable seats when the nature of the work reasonably permits the
use of seats . . . ," you might want to take a seat. It could
be a while.
