Section 14 of the Industrial Welfare Commission Wage Order 7-2001 for the mercantile industry states that “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.” Although this wage order has rarely been used, as of late there has been a surge of “suitable seating” cases against companies, including banks, pharmacies, retailers, and grocery stores. Because “suitable seating” is a compliance issue, the lawsuits seek civil penalties and do not have to prove damages or injury.

California courts have allowed private suits under the Labor Code Private Attorneys General Act of 2004 (PAGA) to indirectly enforce provisions of the wage orders by enforcing statutes requiring compliance with those provisions. The courts have explicitly authorized such suits to enforce the "suitable seating" requirement.(See, e.g., Bright v. 99 Cents Only Stores (2010) 189 Cal.App.4th 1472, 1480; Home Depot U.S.A. Inc. v. Superior Court (2010) 191 Cal.App.4th 210, 222 [violation of Labor Code § 1198 may be brought to enforce wage order provision that employees be provided suitable seating]). And in an unpublished decision. Green v. Bank of America, (No. 11-56365; February 11, 2013), the Ninth Circuit Court of Appeals held that employees need not make a request for “suitable seating” before filing a lawsuit against their employers under PAGA for failing to provide such seating. In Green, the Ninth Circuit reversed a lower court decision that dismissed the case on the basis that the employee never requested a seat. The court noted that the wage order does not require that employees "request seating before it is offered." Rather, consistent with the California state court in Home Depot, the Ninth Circuit found that the seating requirement to be an affirmative obligation of the employer.

PAGA provides a penalty of $100 per employee per pay period for the initial violation, and $200 for each subsequent violation. Assessed penalties are divided between the state and the aggrieved employees pursuant to the statute. Despite the one-year statute of limitations, substantial penalties could arise under PAGA in a class action against a sizeable employer based on the suitable seating requirements.

As for compliance, there is not a lot of guidance out there. Neither the courts, nor the Division of Labor Standards Enforcement (DLSE) have provided any substantive guidance on what constitutes “suitable seating” for employees. "Suitability" in of itself is a squishy term that will depend on the circumstances of the workplace. For example, a basic stool or chair that is capable of holding an average person is likely acceptable in most workplaces. The number of seats necessary will also depend on the nature of the business and the circumstances at each workplace. Ideally, an employer should provide one seat per employee per shift. As a practical matter, however, this may not be possible. Furthermore, the location of the seat is likely to be at-issue, as it will need to be accessible from the employees common work area, but also in compliance with Americans with Disability Act and fire safety standards.